MALPRACTICE ALERT! FALL 2023

No attorney wants to find a letter from the Office of Disciplinary Counsel or the local Certified Grievance Committee in the morning mail. But if that happens, as soon as the initial reaction to that letter allows cogent thought, please call us at OBLIC. The OBLIC policy at paragraph XIV. Limited Legal Fee and Expense Coverage for Disciplinary Actions provides up to $5,000 per policy period to reimburse the named insured for disciplinary defense at the initial letter of inquiry phase. This coverage is not subject to the deductible. 

At this point in the process, many attorneys think they’ll just respond on their own. This is NOT recommended. Representation by an attorney who practices ethics and discipline is important to achieve an efficient and satisfactory resolution. While the insured attorney has the right to select the attorney for this representation, feel free to contact us for qualified referrals. 

If the matter is not resolved at this phase and a Certified Grievance Committee or Disciplinary Counsel files a formal complaint, the policy provides an additional coverage amount of up to $15,000 for reimbursement of attorneys fees associated with the defense of these complaints.  

* Please refer to the OBLIC policy for specifics of this coverage. 

OBLIC was created by Ohio attorneys in the late 1970s to provide a stable, reliable market for legal professional liability (“LPL”) insurance, at a time when commercial insurance carriers were exiting or making such insurance unaffordable.  OBLIC’s creation not only stabilized the LPL market, but also forced other insurance carriers to offer broader coverage at competitive rates.    

OBLIC has continued to lead this industry in Ohio, benefitted by a deeply knowledgeable staff with decades of experience in underwriting, claims and loss prevention.  

OBLIC’s market-leading loss prevention services are delivered by two dedicated, experienced attorneys, Director of Loss Prevention Gretchen Mote and Loss Prevention Counsel Merisa Bowers. In addition to publishing weekly OBLIC professional conduct and practice management content, they frequently offer CLE courses to insureds and other Ohio attorneys. Moreover, Gretchen and Merisa provide a complimentary hotline for policyholders to respond to ethics, client relations, or practice management questions. They provide all sorts of resources and guidance, and set up ethics consultations with outside ethics attorneys when needed.

Gretchen Mote, Esq.  Director of Loss Prevention  [email protected]  614-572-0620	Merisa Bowers, Esq.  Loss Prevention Counsel  [email protected]  614-859-2978

The Ohio Board of Professional Conduct announced two Advisory Opinions in August:   

• Adv. Op. 2023-07:  Discharged Lawyer’s Solicitation of Former Client

This Opinion discussed Prof.Cond.R. 1.16 Declining or Terminating Representation, 4.2 Communication with Person Represented by Counsel, and 7.3 Solicitation of Clients. In this matter, a personal injury client terminated her first attorney in writing and requested the file be delivered to new counsel. However, the terminated lawyer continued to contact the client until the new lawyer emailed requesting an end to such contact. 

The terminated lawyer argued the communication with the client was allowed under Prof. Cond. R. 7.3(a)(2) – prior professional relationship exception. While the discharged lawyer had a prior professional relationship with the former client, the Opinion noted that the lawyer’s solicitation of the client was improper pursuant to Prof. Cond. Rule 4.2 once he learned of the new representation and was instructed to stop.   The purpose of Prof. Cond. R. 4.2 is to prevent lawyers from overreaching, interfering in other client-lawyer relationships, and eliciting protected client information. 

The Opinion also noted the absolute right of a client to discharge a lawyer at any time, with or without cause in Prof. Cond. R. 1.16. The Opinion stopped short of a blanket prohibition against all contact with a former client, but held that with rare exception, a discharged lawyer may not solicit a former client to continue a client-lawyer relationship after the client has retained a new lawyer in the matter. 

• Adv. Op. 2023-08: Departing Lawyer Reimbursing Firm for Advertising Costs

Prof. Cond. R. 1.5 and 5.6 are discussed in this Opinion, in which a law firm wanted to add a clause to its standard employment contract requiring a departing lawyer, for any client matters transferred from the law firm to the departing lawyer’s new firm, to pay the firm the quantum meruit value of work completed prior to the lawyer’s departure plus 25 percent of the overall recovery of attorney fees to reimburse the firm for its advertising costs.   

The Opinion noted that Prof. Cond. R. 5.6(a) prohibits a lawyer from offering or making an employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except regarding benefits upon retirement or upon the sale of a law practice. It also discussed Prof. Cond. R. 1.5(e) regarding the circumstances for lawyers not in the same firm dividing fees.  

The Opinion observed that those Rules of Professional Conduct prohibit a law firm from adding this clause to its employment agreement as an impermissible restriction on the departing lawyer’s right to practice and an impermissible division of attorney fees by lawyers not in the same firm.  

Advisory Opinions are nonbinding responses to hypothetical inquiries regarding the application of Ohio Rules of Professional Conduct. These opinions do not necessarily reflect the opinion of the Supreme Court of Ohio but are intended to guide licensed attorneys. Advisory Opinions issued from 1986 forward can be searched by keyword or subject matter here. 

A chill in the air? Or running down your spine? Don’t let fear creep in by the (gasp!) deadline! How can you best avoid the dread of missing a deadline? One simple step: don’t wait until the last day to complete the work.  

Many things can interrupt your work plans, and if you wait until the last date to complete a task your ability to adjust and resolve a deadline-oriented problem is severely limited. Expect the unexpected, like problems with e-filing systems, computer problems, car troubles, family emergencies, or even the proverbial zombie apocalypse. Whatever the problem, if you wait until the last date a filing is due or up to a discovery cut-off to complete a task, you will likely cause an immense amount of stress and possibly a malpractice claim.  

Over the years, missed deadlines have been a leading cause of legal malpractice claims (not just for personal injury attorneys). By missing a statute of limitations date, a discovery deadline, appeal date or some other key deadline, a client may be fully deprived of their opportunity for recourse.

We recently recommended some action items to ensure your filing or other deadlines are completed on time, and like another sequel to a horror movie franchise, we’re going to replay these tips: 

1. Multiple calendar entries 

When calendaring a deadline, also make “tickler” calendar entries at certain intervals preceding that date. If it’s a statute of limitations date, consider adding entries at 6 months, 3 months, and 1 month prior to the anticipated deadline.

2. Checks and balances 

If a paralegal or associate attorney is calculating a statute of limitations date, have a more seasoned attorney check and confirm the final date before it’s calendared. When the statute of limitations date could be impacted by multiple factors or facts yet undetermined, making sure the most conservative date is calendared may be the best approach.  

3. Plan your workflow 

An important aspect of law firm risk mitigation is to work on creating a culture in your firm where attorneys and staff have an appropriate workload. High volume practices, disorganized offices or staffing, and unclear internal policies can contribute to easily avoidable errors. Once clear internal standards are established, attorneys should follow good time-management practices like blocking calendars to work on identified tasks, leaving time for proofreading, and anticipating the unanticipated (like computer problems).  

By incorporating these procedures into your practice, we hope you reduce the risk of inadvertently missing a deadline and maintain a more efficient and effective practice. No tricks, just treat yourself to breathing easy knowing that you survived the deadline … this time! 

“PMBR” is the abbreviation for “Proactive Management-Based Regulation.” Ohio’s introduction to this concept can be found in the amendments to the Supreme Court Rules for the Government of the Bar of Ohio (Gov.Bar R. V, Section 4 and Gov.Bar R. VI, Section 1, 4, and 10), adopted by the Supreme Court of Ohio, effective January 1, 2025. 

The amendment to Gov. Bar R.V at Section 4 (G) requires disciplinary counsel to establish a free, CLE-accredited proactive management-based regulation curriculum, open to any attorney admitted to practice in Ohio. The curriculum is to assist attorneys in developing ethical infrastructures to improve the delivery of legal services and client relations, enhance the provision of competent and cost-effective legal services, and to proactively prevent violations of the Ohio Rules of Professional Conduct. It has been commonly referred to as the ethical operation of a law practice.  See PMBR FAQs.  

For the next 2025-2027 Biennial Attorney Registration, the rules will require each attorney engaged in the private practice of law to provide information when registering with the Supreme Court indicating whether the attorney has professional liability insurance and whether the attorney has a plan to manage the attorney’s work or caseload in the event the attorney becomes temporarily or permanently unable to do so. 

Beginning with the 2025 to 2027 registration biennium, and in each subsequent biennium, an attorney who is engaged in the private practice of law and who does not carry professional liability insurance will not be permitted to register (and will thus be suspended) until the attorney either completes the Office of Disciplinary Counsel’s proactive management-based regulation curriculum on the ethical operation of a law practice or obtains professional liability insurance and reports that fact to the Office of Attorney Services. 

So, what’s the bottom line?  

If you are reading this then most likely you are an attorney in private practice already insured by OBLIC. If you continue such coverage into the 2025-2027 registration biennium, then you will be able to respond to that new question in the affirmative and will be good to go!  If you know someone who is in private practice but not insured, recommend they either obtain insurance or be prepared to take the PMBR focused CLE curriculum. 

Attorneys in private practice will also have to answer whether they have a plan to manage the attorney’s work or caseload in event the attorney is temporarily or permanently unable to do so. In other words, the attorney will need to have an emergency succession plan. With plenty of time before the 2025 registration, we hope you will use our OBLIC resources to establish a good, workable succession plan for your firm. If you have questions about this, please contact us! 

See Covering Short-term Absences 

Business Succession Planning: Designating a Successor Attorney 

Ohio Ethics Guide:  Succession Planning 

Family: Child Support   

The 2023 Child Support Guidelines Review Report to the General Assembly was issued in March 2023. Its Executive Summary notes reflects an initial record of the current state of the Ohio child support guidelines, which were fundamentally revised effective March 28, 2019. Many of the revisions were intended to generate more accurate and affordable orders resulting in more consistent payments for low–income families. Guidelines changes also included measures to address parent timesharing under Ohio’s formula. This report will begin to set the stage for future evaluation of post-March 28, 2019 orders.  

The Report states three main conclusions: 

• The statutory formula for updating the Ohio child support schedule appears to work. It is designed to update the schedule administratively every four years. It was tested against a schedule using more current economic data. The differences were generally small, with the exception at very high incomes. 

• The analysis of labor market data reiterates the importance of considering the individual circumstances of the parent and the local employment opportunities when income imputation is authorized. 

• There are many options for timesharing formulas, and many factors to consider in deciding what is most appropriate for Ohio families and children. 

The current Child Support Calculator is available online. In June 2023, Ohio Department of Job and Family Services (ODJFS) issued the Child Support Guideline Manual for Ohio Courts and Agencies. This was discussed at the recent meeting of the OSBA Family Law Committee with representatives of ODJFS. If there are questions about this, please use this link https://jfs.ohio.gov/child-support/contact-us.

Supreme Court of Ohio Bench Cards Child Support are also helpful.  

Criminal: Expungement update 

Additional revisions to Chapter 2953 go into effect October 3, 2023 regarding sealing or expungement of records.  

Specifically, eligibility has been revised related to convictions of felonies of the third degree when the offender has other felony and misdemeanor convictions. Additional revisions are explained in the Final Analysis by the Legislative Service Commission of HB 33, signed by the Governor on July 4, 2023: 

The act allows a defendant who is found not guilty of an offense, who is named in a dismissed complaint, indictment, or information, or against whom a no bill is entered by a grand jury, to apply to the court for an order to expunge the person’s official records in the case. The process for expungement, as added by the act, mirrors the process for sealing records in cases of dismissal, not guilty, or no bill.  

Additionally, expungement of records related to a dismissed or no bill case is not available if the case involves any of the following offenses:    

1. A violation of Ohio’s Commercial Driver’s License Law, Driver’s License Law, Driver’s License Suspension Law, Traffic Law, or Motor Vehicle Criminal Law, or a violation of a municipal ordinance that is substantially similar to any of those laws.  

2. A felony offense of violence that is not a sexually oriented offense.  

3. A sexually oriented offense when the offender is subject to the requirements of R.C. Chapter 2950 (SORN Law).  

4. An offense involving a victim younger than 13, except for the offenses of nonsupport of dependents or contributing to nonsupport of dependents.  

5. A first- or second-degree felony.  

6. A “domestic violence” offense, a “violating a protection order” offense, or a similar municipal ordinance offense.  

7. A third-degree felony if the person has more than one prior conviction of any felony or if the person has exactly one prior conviction of a third-degree felony and the person has more prior convictions in total than a third-degree felony conviction and two misdemeanor convictions.  

S.B. 288 of the 134th General Assembly similarly enacted new provisions under which a person may apply for expungement of a conviction record in the same manner that a person may apply for sealing of a conviction record and specified that the procedures applicable to determining a sealing application also generally apply to such an expungement application. The act clarifies that expungement of criminal records under these provisions requires the destruction, deletion, or erasure of those records so that those records are permanently irretrievable, except to the extent they are kept by the Bureau of Criminal Identification and Investigation for the limited purpose of determining an individual’s qualification or disqualification for law enforcement employment.

The act also allows for the sealing of a conviction of fourth degree misdemeanor domestic violence but prohibits expungement of the record. Finally, the act allows a person who has been arrested for any misdemeanor offense and who has effected a bail forfeiture for the offense to apply for the expungement of a record of a misdemeanor offense after one year, or after six months for a minor misdemeanor, rather than three years as under prior law.  

Regarding sealed records specifically, the act permits a legal representative of a person who is the subject of sealed records to apply to allow the subject to inspect them, exempts officers or employees of the state or a political subdivision from liability for disclosing sealed or expunged records to the subject or the subject’s legal representative, and corrects erroneous cross references. 

Criminal law practitioners should consult with colleagues and the bench on the application of the laws. 

Probate: Creditor presenting claims to the estate update  

Effective April 3, 2023, the Ohio Revised Code expanded the process by which creditors may present claims to the estate of a decedent.  

While the rules remain unchanged as to when a claim is presented (within 6 months from the date of death of the decedent and after the appointment of an executor or administrator), Rev. Code 2117.06 has expanded how creditors’ claims can be made. 

(A)(1) requires that claims be presented prior to the filing of a final account or a certificate of termination in one of three ways: 

(a) To the executor or administrator, or to an attorney who is identified as counsel for the executor or administrator in the probate court records for the estate of the decedent, in a writing;

(b) To the probate court in a writing that includes the probate court case number of the decedent’s estate;

(c) In a writing that is actually received by the executor or administrator, or by an attorney who is identified as counsel for the executor or administrator in the probate court records for the estate of the decedent, within the appropriate time specified in division (B) of this section and without regard to whom the writing is addressed. For purposes of this division, if an executor or administrator is not a natural person, the writing shall be considered as being actually received by the executor or administrator only if the person charged with the primary responsibility of administering the estate of the decedent actually receives the writing within the appropriate time specified in division (B) of this section.

Note, too, however: if the final account or certificate of termination has been filed within the first six months after the death of the decedent, then the creditor may, pursuant to (A)(2), present its claim to the distributees of the decedent’s estate.  

These changes expand how a valid claim may be made against the estate and permit a claim to be noticed in writing only to the attorney for the executor or administrator. It further permits a valid claim to be noticed only upon a writing to the court and removes the requirement that it be noticed both to the executor or administrator AND the court. Further, it ends the requirement that the writing be addressed to the decedent via ordinary mail and permits more broadly “in writing” which may include email.  

Attorneys should review the statute and confer with local rules in all of the counties in which they practice to ensure clarity on requirements for the presentment of creditors’ claims against estates. 

Notary Changes  

Several notary changes took effect April 6, 2023 with the enactment of  H.B. 567 of the 134th General Assembly of interest to attorneys: 

Certificate of motor vehicle title changes remove the notary requirements for several types of motor vehicle title documents when a licensed dealer is party to the transfer and remove the requirement that a power of attorney (POA) be notarized when a person grants a POA to a licensed motor vehicle dealer or dealer’s agent for the transfer of the motor vehicle title. Note there are additional changes regarding transfer of vehicles involving a minor. 

Notarial certificates and forms of acknowledgments are significantly changed. “Acknowledgment” is redefined to mean an individual’s declaration before a notary that the individual has signed a record for the purpose stated in the record, and if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the person identified in the record. 

The notarial certificate for an acknowledgment or jurat is not required to indicate the type of notarization being performed. The authorized form of a jurat is changed from the signature of the person making the jurat to the “name of signer.” A new form of acknowledgment specifically for limited liability companies is also included.  

For this quarter we focus on tasks around file retention and destruction and suggest over the next three months you tackle these, which should take you 30 minutes or less each.

October   

Consider the types of cases you handle and the relevant statutes of limitations for those matters. Draft or revise your client file retention policy.  

Remember that Prof. Cond. R. 1.15 requires that you retain IOLTA records for 7 years. Note that the first item required in the items listed in that rule is a copy of the fee agreement, if any. That’s not an excuse to keep ALL client records for 7 years! If you decide on a shorter record retention for client files, keep the fee agreements with the IOLTA records or in a “fee agreement” file.    

November   

Assemble a list of all active and closed client files and their location. 

December   

Begin the process of culling the files and contacting clients to retrieve closed client files. Get ready to celebrate the New Year with THAT crossed off your list! 

OBLIC Loss Prevention attorneys are happy to assist with questions about these suggested tasks and templates. 

In an August 3, 2023 ruling in State v. Jordan, Slip Opinion No. 2023-Ohio-2666, the Ohio Supreme Court dismissed as improvidently accepted two consolidated appeals from rulings in Scioto County.  The trial court removed a law firm from representing two co-defendants in criminal drug trafficking and possession cases based on the court’s determination that dual representation was too prone to cause a conflict of interest for the firm’s attorneys, despite the waiver of conflict affirmed by the clients/defendants. Finding that State v. Chambliss, 128 Ohio St.3d507, 2011-Ohio-1785 (2011) was controlling law and undisputed by either the appellants or appellee, the majority held that there was no “public or great general interest” and dismissed the appeals, effectively allowing the trial court’s rulings to stand. 

During oral argument, counsel for the co-defendants/appellants argued that their Sixth Amendment rights were compromised by the trial court’s removal of their counsel-of-choice. Counsel for the prosecution argued that it was adequately reasoned by the trial court and within the discretion of the trial court to remove privately retained counsel due to the finding that there was too likely to be a conflict of interest if a single firm represented these two co-defendants.  

Justice DeWine, dissenting, argued that the Court missed an opportunity to overrule a “troublesome glitch … about the final-order doctrine,” to wit: State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785 (2011). Justice DeWine argued that such a ruling to remove counsel should not be a “final, appealable order” permitting an interlocutory appeal. Rather, Justice DeWine argued that Chambliss does harm to all involved: defendants, prosecution, crime victims, and the courts by requiring immediate appeal before a verdict on the merits of the case is rendered. 

The 14-page Opinion is an interesting read with analysis of the final-order doctrine and related recent case law. This case serves as a good example, however, of the perils of considering dual representation of co-defendants.  

While the parties may consent and assert that it is in their own best interests to share trial counsel, trial courts, subject to defendants’ Sixth Amendment rights as discussed in Gonzalez-Lopez, 548 U.S. 140 (2006), may review that choice. Attorneys are well-advised to inform their clients not just of the potential confidentiality and conflict-of-interest perils, but also of the potential delays and overview that the trial court retains related to that choice of counsel.  

For more on State v. Jordan: Oral argument and Docket