MALPRACTICE ALERT! SPRING 2020

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

Our Spring Malpractice Alert could juxtapose changes in the legal world with the changing seasons. Recently, we have had unprecedented changes in how we are practicing law, how we are interacting with clients, and how we are navigating daily life. This issue of Malpractice Alert will provide updates on:

 

Avoiding Malpractice or Ethical Problems – Resist Dabbling
Ohio Civil Rule 6
Ohio Rules of Professional Conduct
Opinions of the Ohio Board of Professional Conduct
Recent court decisions and Current developments.

 

Please send your feedback and questions to Gretchen Mote, Director of Loss Prevention.  OBLIC is here for you!

Avoid Malpractice or Ethical Problems – Resist Dabbling

Undertaking representation outside your area of expertise can often lead to malpractice claims or disciplinary complaints, and during this difficult time caused by COVID-19, we understand the increased temptation to do so. Whether you are merely trying to lend a hand to someone in need, or trying to offset declining revenue, it is NEVER a good idea to dabble in areas of practice with which you have little or no experience, as “you don’t know what you don’t know” and you could easily step on a land mine.

Rule 1.1 Competence of the Ohio Rules of Professional Conduct requires that, “A lawyer shall provide competent representation to a client.” Further, competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Comment [1] lists relevant factors for determining whether a lawyer has the requisite knowledge and skill in a particular matter:

  • the relative complexity and specialized nature of the matter
  • the lawyer’s general experience
  • the lawyer’s training and experience in the field in question
  • the preparation and study the lawyer is able to give the matter
  • whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.

However, as Comment [2] explains, a lawyer CAN provide adequate representation through necessary study or through association with a lawyer of established competence in this new area of law you wish to undertake. While it may be tempting to accept representation in order to keep the revenue flowing, especially during this crisis, we urge you to either avoid doing so or follow the guidance offered in Comment [2].

Video Conference Security

Although legal services are deemed essential in Governor DeWine’s Order, many lawyers are working remotely from home for the health and safety of themselves and their clients. Video conferencing services are a regular part of law practice during this emergency. Rule 1.6 applies no matter what the format of client communication. Be sure you are employing effective security when you are utilizing these services!

Here are some tips:

  • Send a one-time use meeting ID and password for the meeting
  • Manage the participants – Lock the meeting after all invitees are in
  • Check to be sure your meeting is not being recorded
  • Be sure no confidential data from your location is visible to meeting participants
  • Use virtual background to further protect privacy

An interesting article discussing these issues is found here: Monitor your privacy settings for Zoom Video and Alexa.

Amendments to Rule 6 of the Ohio Rules of Civil Procedure

Amendments to the Ohio Rules of Practice and Procedure are published for public comment. They are then filed with the Ohio General Assembly and, if the General Assembly does not act, become effective on July 1st. Amendments to Rule 6 of the Ohio Rules of Civil Procedure took effect July 1, 2019.

 

These amendments provide at (C) (1) Responses to a written motion, other than motions for summary judgment, may be served within fourteen days after service of the motion. Responses to motions for summary judgment may be served within twenty-eight days after service of the motion. A movant’s reply to a response to any written motion may be served within seven days after service of the response to the motion.

 

Further amendments to Rule 6 (C)(2) and (C (3) address motions prior to hearing or trial and modification of the time periods. As the Staff Notes explain, the amendment separates Rule 6 (C) into three divisions:

 

The provisions of Division (C)(1) supersede and replace the differing deadlines for responding to motions imposed by the numerous local rules of Ohio trial courts, thereby eliminating confusion and creating consistency by providing uniform statewide deadlines. The division establishes a twenty-eight day deadline for service of responses to motions for summary judgment, and a fourteen day deadline for service of responses to all other motions. A movant’s reply to a response to any motion may be served within seven days after service of the response.

 

The provisions of Division (C)(2) establish deadlines for serving written motions for purposes of a hearing or trial (e.g., motions in limine, motions to bifurcate, etc.). Unless a different period is fixed under another Rule of Civil Procedure or by order of the court (e.g. an scheduling order entered in accordance with Civ.R. 16) written motions for purposes of a hearing must be served not later than fourteen days prior to the hearing, while motions for purposes of trial must be served not later than twenty-eight days prior to trial.

 

The provisions of Division (C)(3) permit the court to modify the periods of time provided in Division (C)(1) and Division (C)(2) in an individual action upon the filing of a motion of a party and for good cause. For example, expediting interlocutory rulings in an action for injunctive relief might constitute good cause for reducing the time for responding to certain motions in that action.

 

Thanks to Attorney Todd Hoffpauir for suggesting this topic. Be aware that these amendments may change local practice and scheduling orders may change these time frames. It is always a good idea to review the local rules as well. For a complete listing of Ohio Trial Courts & Local Rules by county.

Changes to Ohio Rules of Professional Conduct

You may have noticed regarding your IOLTA that the Ohio Legal Assistance Foundation was renamed the Ohio Access to Justice Foundation. Effective February 11, 2020, the Ohio Supreme Court adopted amendments to Rule 1.15 of the Ohio Rules of Professional Conduct and in the Note to Rule 6.1 to reflect this name change. Click for additional information about the Ohio Access to Justice Foundation or questions about your IOLTA.

New Opinions and Ethics Guide of the Ohio Board of Professional Conduct

The Ohio Board of Professional Conduct has issued two Opinions in 2020 to date:

 

Opinion 2020-1 Covenant Not to Compete Offered to In-house Counsel says that: An in-house lawyer may not agree to an employment contract with a covenant not to compete that would restrict the lawyer’s right to practice after separation of employment. The Opinion discusses Ohio Rule of Professional Conduct 5.6 and concludes that a restriction on the right of a lawyer to practice limits the professional autonomy of the lawyer and ability of clients to select counsel of their choice. In situations where a lawyer is providing both business and legal functions, a lawyer may ethically execute an employment agreement with a restrictive covenant that also contains a clause that limits the covenant only to matters other than the practice of law.

 

Opinion 2020-2 Preparation of Deed Upon Direction of Real Estate Agent withdrew Opinion 1988-30 and advises that: A lawyer should not draft a deed at the direction of his or her client’s real estate agent that is different than the deed required by an executed contract, without the client’s consent, if the new deed will affect the ultimate resolution of the matter or the substantive rights of the client. When interacting with an unrepresented party in a real estate transaction, a lawyer must identify himself or herself as the lawyer for either the buyer or seller, refrain from giving the unrepresented party any legal advice, and may only advise the unrepresented party to secure independent legal counsel. For further discussion, see OBLICAlert Best Practices: Real Estate Deed Preparation, March 13, 2020.

 

The new Ethics Guide on Limited Scope Representation issued March 2020 is an excellent resource for attorneys providing “unbundled” or limited scope representation pursuant to Rule 1.2 (c) of the Ohio Rules of Professional Conduct. The Ethics Guide Appendix has Sample Agreement: Engagement Agreement for Legal Services, Checklist: Attorney and Client Task Assignment, Sample Notice of Limited Scope Appearance, and a Sample Notice of Completion of Limited Scope Appearance.

Recent Court Decisions

In a decision issued March 12, 2020, the Ohio Supreme Court in Vossman v AirNet Systems, Inc., Slip Opinion No. 2020-Ohio-872 held that Ohio Revised Code 2303.21 does not authorize a party to recover the cost of deposition transcripts used in support of a motion for summary judgment. The Court concluded that “a discovery deposition conducted outside the presence of a judge is not a proceeding within the meaning of R.C. 2303.21 and thus the cost of procuring the transcript of such a deposition many not be recovered as a cost under Civ. R. 54(D).

 

The Ohio Supreme Court considered court-awarded attorney fees in a complex business litigation, Phoenix Lighting Group, LLC v. Genlyte Thomas Group LLC, Slip Opinion No. 2020-Ohio-1056. Ohio courts generally follow the “American rule” with each party responsible for its own attorney fees, with the exception for when a party is awarded punitive damages. The Court found that the beginning point for determining the award of attorney fees is the reasonable hourly rate multiplied by the number of hours worked, referred to as the “lodestar.” This decision considers the circumstances that warrant enhancement to the lodestar. The Court reaffirmed their holding in Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 569 N.E.2d 464 (1991) to the extent that it held that a lodestar can be modified, but held, consistent with the decision of the United States Supreme Court in Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), that the lodestar is presumptively reasonable and that enhancements to the lodestar should be rarely granted and allowed only when the prevailing party has presented evidence that enhancement is necessary to provide reasonable compensation.

 

In Disciplinary Counsel v Amaddio and Wargo, Slip Opinion No. 2020-Ohio-141, the Supreme Court suspended two attorneys from Cuyahoga County for one year after they attempted to secure more than a $1 million fee from a wrongful death settlement. The Court found that the fee claimed was grossly disproportionate to the amount and difficulty of the work performed. In addition, the alleged fee agreement was unenforceable as a matter of law because it was never reduced to a writing signed by the client and attorneys as required by Ohio Revised Code 4705.15(B).

 

In re K.M., Slip Opinion No. 2020-Ohio-995, a unanimous Ohio Supreme Court decided that a 90-day hearing requirement in Ohio Revised Code 2151.35(B)(1) is mandatory and if the juvenile court does not conduct a dispositional hearing within that time to decide a child’s placement in protective supervision or decide custody issues after authorities file complaints alleging the child is abused, neglected, or dependent, the court must dismiss such cases without prejudice and authorities must start the process over.

 

The Ohio Supreme Court unanimously decided in State v. Nettles, Slip Opinion No. 2020-Ohio-768 that for purposes of Ohio Revised Code 2933.53, an interception of a cell-phone call takes place both at the location of the cell phone and at the location of the government agent listening in on the call and allows law enforcement officers to obtain a warrant to intercept calls from a judge in the county in which the interception of the call occurs.

 

In a ruling issued by the 7th Circuit U S Court of Appeals, the Court held that using the words, “TIME SENSITIVE DOCUMENT” on the envelope containing a collection letter violated the Fair Debt Collection Practices Act (FDCPA). This decision, Preston v. Midland Credit Mgmt., Inc., 2020 WL 290451 (7th Cir. Jan. 21, 2020) is instructive not to put any markings on the envelope other than postal designations such as certified mail, overnight mail, priority mail.

Current Developments

Ohio’s Primary Election has been moved to April 28, 2020 due to COVID-19. The election will take place mostly by mail, with very limited in-person voting on Election Day. Information on judicial races may be found at Judicial Votes Count. This is Ohio’s only nonpartisan, statewide judicial election resource to learn more about judicial candidates. Don’t forget to vote!

 

If you saw the movie Just Mercy at the OSBA event sponsored by the OSBA Litigation Section and OSBA Young Lawyers, you were no doubt moved by the 1960’s story. To “analyze current practices and recommend improvements to further our standards of justice,” Supreme Court Justice Maureen O’Connor convened a new Ohio Supreme Court Task Force on Wrongful Convictions. Public notice of all task force meetings will be posted on the Supreme Court’s website and will be open to the public. Task force members will serve without compensation. The task force will issue a report of its findings and recommendations to the Chief Justice and the justices of the Court by Dec. 31, 2020.

 

A new Mayor’s Court Bench Book has been issued by the Supreme Court to assist with the operations of these courts. The bench book has an outline of the court process, checklist for explaining the rights a mayor or magistrate must ensure a defendant understands, the complete set of mayor’s court rules, and sample forms to be used during the court process.

On April 7th, Chief Justice O’Connor issued Guidance to Mayor’s Courts during COVID-19. The Guide addresses:

  • Efforts to Minimize Physical Appearances at Court through granting continuances for non-essential court appearances, using technology to conduct arraignments, hearings, etc., and extending deadlines for court-ordered classes.
  • Access to the Courts allowing in-person filing, particularly if e-filing is not available.
  • Fines, Bail, Bonds and Warrants with guidance to issue recognizance bonds, refrain from issuing a capias warrant and if a fine is imposed, the mayor or magistrate shall determine whether a defendant is able to pay any fine.
  • For Incarcerated Individuals, use discretion to release individuals held in jail.
  • Communication is required for the mayor’s courts to provide updates on access to the municipal building and case updates via the

local court or city webpage, social media, etc.

Finally, the Courts are advised to regularly check the Supreme Court’s coronavirus website for updated resources: sc.ohio.gov/coronavirus.

 

And, in the event you have read this completely, here is a little treat to make you smile!

With many of us working remotely, I hope you’ll have time after you read this edition of OBLIC's Malpractice Alert! to take a walk and enjoy some spring sunshine. We hope you find this Malpractice Alert Issue useful in your day-to-day practice. If we can answer any questions or assist you, please feel free to contact us.