MALPRACTICE ALERT! FALL 2024

myOBLIC is intended to augment service to policyholders. Our dedicated team of professionals located in central Ohio remain available to provide personal assistance to Ohio’s law firms.

Professional conduct CLEs provide an opportunity for attorneys to examine guiding principles and values of the practice of law. Beyond the ethics of engaging with clients, opposing counsel, and the courts, professional conduct CLEs share real-world, practical tips. Attorneys who prioritize professionalism in their practices demonstrate their commitment to integrity, intellectual honesty, independence and civility. See The Supreme Court of Ohio Commission on Professionalism’s Professionalism CLE Guidelines.

To encourage professionalism and subject matter expertise, OBLIC continues to offer a PREMIUM CREDIT for an OBLIC insured attorney or new applicant who:

• Obtains a total of five (5) credit hours of continuing legal education in professional conduct (ethics, professionalism or substance abuse or any combination thereof) within the twenty-four months immediately preceding his/her policy effective date; or
• Is recognized as a “Certified Specialist.”

This premium credit is:

• 15% against an insured attorney’s base insurance premium, and
• Capped per attorney in private practice at $300 for full-time policies or $125 for part-time policies.

Contact your OBLIC Underwriter if you have any questions about this premium credit.

As the only professional liability insurance provider devoted to protecting Ohio’s lawyers and law firms, OBLIC is proud to align our business practices with supporting proficient and skilled practitioners.

Over the last two months, we’ve watched as Olympic and Paralympic athletes in Paris push themselves to achieve greatness. Attorneys can aim for a stand-out performance, too, with gold standard communication with our clients. Great communication isn’t just about being clear—it’s about building trust, showing empathy, and empowering clients every step of the way. Here are some key components to help you bring home the gold in client interactions:

1. Clear and Concise Language: Just as Olympic athletes need to be precise in their movements, lawyers must be precise with their words. Avoid legal jargon and colloquialisms and be straightforward to ensure clients understand their situation and options fully.

2. Timeliness and Promptness: In the Olympics, every second counts. Similarly, prompt communication shows clients that their concerns are your priority. Timely updates and responses build trust and demonstrate that you are actively engaged in their matter.

3. Demonstrate Caring: Olympians not only compete but also show great sportsperson ship and understanding of their competitors. Lawyers should practice the same empathy with clients, showing understanding and sensitivity to their unique situations. This builds rapport and reassures clients that their interests are genuinely cared for.

4. Share the Plan and Encourage Collaboration: Just as coaches collaborate with athletes to strategize, lawyers should communicate their strategies clearly and allow room for client input. When clients understand the strategy and feel involved in the decision-making process, they have a sense of agency and control over their outcomes.

5. Consistency and Reliability: Olympic athletes rely on consistent training and preparation to perform at their best. Similarly, consistently reliable communication builds a foundation of trust. Setting expectations early and meeting them consistently is key to maintaining a strong attorney-client relationship.

6. Proactive and Prepared: Like a coach who prepares an athlete for challenges and unexpected scenarios, lawyers should guide clients through potential outcomes and set realistic expectations. Being transparent about both the strengths and challenges of a case ensures prevents clients from being caught off guard due to an adverse ruling, a problem with discovery, or a challenging deposition.

By incorporating these elements, lawyers can achieve “gold medal” client communication, leading to stronger relationships, increased client satisfaction, and ultimately, more successful outcomes.

We continue our guide on legal malpractice, aiming to contextualize loss prevention and avoidance tips. In previous editions, we’ve covered duty of care, breach of duty, and proximate causation of damages. This quarter’s focus is on Statutes of Limitations and Repose.

Understanding the Ohio Statutes of Limitations and Repose for Legal Malpractice Claims

The statute of limitations for legal malpractice in Ohio is codified in Ohio Revised Code (R.C.) 2305.117(A). Under this law, a person must file a legal malpractice claim within one year of the date the cause of action accrued. The cause of action accrues at the latter of:

1. A “cognizable event” when a client knew or should have known that they may have an injury caused by the attorney; or

2. When the attorney-client relationship terminated for that matter.

See Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54 (1989). In simpler terms, the clock starts ticking when the client discovers he or she may by injured by an act, error or omission of the attorney or when the attorney-client relationship ends, whichever comes last.

Ohio has now also codified a statute of repose that applies to legal malpractice claims effective June 2, 2021. R.C. 2305.117(B) bars actions upon legal malpractice claims that are not filed within four years of the act or omission that is the basis of the claim. Although there has been no Ohio Supreme Court decision on the application of the statute of repose to date, the statute imposing the four-year period does not require knowledge of the error to bar the claim. There are a few limited exceptions to the four-year deadline:

1. Minors and Those of Unsound Mind: R.C.2305.117(B) exempts claims brought by minors or individuals who are considered to be of unsound mind, referencing R.C. 2305.16 that tolls until the disability is removed;

2. Delayed Discovery: If a claimant could not have reasonably discovered the injury in less than three years of the act or omission but does discover it before the expiration of the fourth year, the person is provided an additional year from the date of discovery to bring the action timely within the statute of repose.

These exceptions provide a limited extension of the filing period, but the overarching rule is that claims must generally be brought within four years of the alleged malpractice.

Ambiguity in the Statute’s Application

Since the enactment of R.C. 2305.117, questions have arisen about how the statute of repose should be applied. The statute itself does not specify whether it applies only to acts or omissions occurring after June 2, 2021, or if it also affects actions for claims arising from acts or omissions that occurred more than four years earlier.

However, to date, appellate courts have applied it retroactively: causes of action that accrued prior to the effective date of the new statute have been held to the four-year statute of repose standard. See, e.g., Owens v. Purcel, 2024-Ohio-1514, 6^th App. Dist., and Gaffin v. Haslam, 2024-Ohio-2117, 4^th App. Dist. The Owens court also held, as the Ohio Supreme Court did in Wilson v. Durrani for medical malpractice actions, that the savings statute (R.C. 2305.19) does not extend the statute of repose deadline.

Clarification for Opinions of Title

To address some concerns, the Ohio House of Representatives passed House Bill 133, which became law on September 1, 2021. This bill added a new subsection (D) to R.C. 2305.117 specifically excluding retroactive application of the statute of repose from legal malpractice actions arising from opinions of title.

R.C. 2305.117(D) excepts Opinions of Title as follows:

Legal malpractice claims against an attorney or law firm related to the issuance of an opinion of title issued prior to June 16, 2021, must be commenced within one year after the cause of action accrued, regardless of when the act or omission occurred.

This amendment suggests that, at least for opinions of title, the statute of repose is only applicable to those issued after June 16, 2021. It also implies that the Ohio legislature may have intended some degree of retroactive application for the statute of repose. However, whether the courts will accept this interpretation remains uncertain.

Conclusion

With a one-year statute of limitations and the newer four-year statute of repose, attorneys must continue to be concise in establishing a clear scope of representation and a clear conclusion of representation for a particular matter. Even when representation of a client is on-going for subsequent matters, clearly defining the conclusion of a particular matter can aid in establishing the date from which the SOL and SOR begin to run.

• Specifically define the scope of representation for each and every matter in writing
• Document in a dated writing to the client the conclusion of every matter

It is a best practice to postpone any collections actions against a former client for unpaid fees for more than one year following the conclusion of representation to avoid drawing a retaliatory malpractice claim.

While the courts have consistently applied a strict approach to the statutes of repose in both legal and medical malpractice matters, attorneys can avoid ambiguity with clear communication to clients.

Stay tuned for Navigating Legal Malpractice – Final Wrap in our next quarterly edition of Malpractice Alert!

New Advisory Opinion: ABA 512

On July 29, the American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 512: Generative Artificial Intelligence Tools. In issuing non-binding advisory guidance on attorneys’ use of generative artificial intelligence in practice, The ABA joins various state-level bar associations including California, Florida, New York, Minnesota, and the District of Columbia.

Discussing a broad range of Rules of Professional Conduct that apply to use of the emerging technology, the Formal Opinion identifies concerns with confidentiality and accuracy with using generative AI tools that are not tailored to use by legal professionals. It also suggests that attorneys should seek informed consent from clients when using client information in generative AI applications, and guides attorneys with managerial authority to establish use policies and training for staff and associates.

OBLIC offers a sample Model Generative AI Use Policy that insured firms may wish to review. Contact Loss Prevention to request the model policy or to discuss professional conduct implications of generative AI use.

Various Ohio Courts Issue Rules on Use of AI

Ohio judges have issued standing orders and Ohio courts have adopted local rules addressing the use of Generative AI by lawyers in documents and evidence submitted to the courts. There are generally two types of promulgated rules:

1) the requirement of a certification by the submitting attorney that if the filing, or any part thereof, was created by a generative AI tool, that it has been independently fact-checked and verified by the submitting attorney (see, e.g. Hamilton County Common Pleas Local Rules, Medina County Probate & Juvenile Court Local Rules); OR

2) a prohibition on the use of generative AI tools in the creation of any filing submitted to the court (see, e.g., Judge Boyko Standing Order, N.D. of Ohio (with exceptions), proposed Summit County Domestic Relations Court Local Rule).

Relevant to these adopted and proposed court rules and orders, the District of Columbia Bar Association adopted Ethics Opinion 388 in April 2024. Ethics Opinion 388 identifies Rule of Professional Conduct 3.4: Fairness to Opposing Party and Counsel as relevant to adherence to rules of a tribunal. Ohio Rule of Professional Conduct 3.4(c) prohibits an attorney to “knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on a good faith assertion that no valid obligation exists.”

It is incumbent upon practitioners to regularly review local rules and standing orders for the courts in which they practice, and to stay up to date on new or proposed rules. When there are rules or orders restricting use, it’s fair play to follow those rules to respect the court and colleagues.

The ABA Standing Committee of Ethics and Professional Responsibility recently issued Formal Opinion 513 Duty to Inquire Into and Assess the Facts and Circumstances of Each Representation. The ABA amended Model Rule 1.16 (a) in 2023 to avoid lawyers’ “unwitting involvement in or failure to heed “red flags” that a client sought to use the lawyer’s services for money laundering and financing terrorist activities.

Model Rule 1.16(a) now explicitly requires that a lawyer inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation and must withdraw if the client or prospective client seeks to use or persists in using the lawyer’s services to commit a crime or further a crime or fraud. Opinion 513 provides additional guidance on these duties.

The Opinion discusses what it means to “inquire into and assess the facts and circumstances.”

It notes that Comment [2} of the Rule adopts a risk-based approach that incorporates concepts of reasonableness and proportionality and identifies five non-exclusive factors to consider when assessing the risk of accepting or continuing a representation.

Further, the Opinion notes when the lawyer’s initial inquiry leaves the lawyer with unresolved questions of fact about whether the current or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, the lawyer must make additional efforts to resolve those questions through further reasonable inquiry proportionate to the risks, so that the lawyer can reduce the risk of counseling or assisting a crime or fraud.

The Ohio Rules of Professional Conduct do not include these amendments to Rule 1.16. However, Prof. Cond. R. 1.2(d)(1) addresses that the lawyer not counsel a client to engage or assist a client in conduct the lawyer knows is illegal or fraudulent and Prof. Cond. R. 1.16(d)(2) provides that a lawyer may withdraw if a client persists in a course of action involving the lawyers services that the lawyer reasonably believes is illegal or fraudulent.   

The comment period is open until October 21, 2024 to submit comments on proposed amendments to rules addressing victim’s rights under “Marsy’s Law.” The proposals would change:

• Rules of Appellate Procedure to require reasonable notice to be given to the victim before the court determines a motion for bail and suspension of execution of sentence and add a section on interlocutory appeals.
• Rules of Civil Procedure to add an additional requirement that a petitioner’s contact information be kept confidential
• Ohio Rules of Criminal Procedure with ten amendments regarding victim’s rights to notice and to be heard.
• Ohio Rules of Evidence to reflect the Marsy’s Law definition of victim.
• Ohio Rules of Juvenile Procedure to align with Marsy’s Law.

Comments may be submitted in writing before October 21, 2024 to:

September Coyne
Legislative Counsel
Supreme Court of Ohio
65 S. Front St., 7th Floor
Columbus, OH 43215
or
[email protected]

As we look at winding down another year, let’s look at some “clean sweep” tasks.

October

Tackle the “scary” task of cleaning up your office. You can start with your desk, move on to the credenza, and finish with file drawers. Why bother with this? Not having a functional workspace can impact productivity!

November

Get a jump on holiday greetings! Make a list of persons you want to thank for their involvement over the past year and send them your good wishes. This can be formal paper or electronic “cards” from the firm or informal emails just letting clients, vendors, colleagues and friends know that they are important. Consider a “thanks” greeting on your website as well.

December

Do a comparative analysis of year-end 2024 with previous year(s). This can include evaluation of goals set for 2024 and progress toward achievement and how that fits with your long-range plan and strategic plan. You can do this on a professional and/or personal level. No goals or long-range plans? Think about establishing goals for the new year!