MALPRACTICE ALERT! SPRING 2021

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

It looks like spring is finally arriving in Ohio. As we mark one year of practicing law in the COVID-19 pandemic, we are eager to leave our winter of discontent and move ahead with hope. This issue of Malpractice Alert will update you on new law, proposed rules and practice and procedure. OBLIC will continue to keep you informed as we transition to the next phase. As always, please let me know if you have questions. All of us at OBLIC are here to help you!

 

Gretchen K. Mote, Esq.

Director of Loss Prevention

COVID-19 Update

With many Ohioans receiving vaccines for COVID-19, courts are proceeding in various formats. The Ohio Supreme Court announced that it will continue to hold oral argument court sessions via videoconferencing at least through the end of June 2021. Many Ohio courts have also adopted Local Court Orders in response to COVID-19. If you do not find a listing for your local court online, please contact your local court directly to determine how they are conducting their daily activities.

 

Additional Coronavirus Resources can be found on the Supreme Court of Ohio website. This includes information on evictions and foreclosure and CLE credit for attorneys who serve as poll workers during the May 4, 2021 Primary Election. See also FAQs CLE Credit for Attorneys who Serve as Poll Workers May 4, 2021. The Ohio State Bar Association COVID-19 Resource Directory also provides useful information, including links to legislative resources, such as the COVID-19 Immunity Legislation and a checklist for Reopening your Office/Bringing Employees Back to the Office.

 

Perhaps the most important reminder is to continue to keep in touch with your clients – in fact, it is your ethical duty to keep them timely apprised of developments during your representation. During these pandemic times when we may not be meeting with clients in person, it is especially significant to let them know you are there for them and how you can and are assisting them. If you haven’t taken the opportunity to reach out to current and former clients lately – now is a good time to check on them. See The Value of Client Communication and Effective Client Communication.

Ohio Enacts a Legal Malpractice Statute of Repose

On March 16, 2021, Governor DeWine signed SB 13 of the 134th General Assembly to enact a four-year statute of repose for legal malpractice actions. To clarify the application to claims for legal malpractice SB 13 adds language to Section 2305.11(A) specifying that “an action for legal malpractice against an attorney or a law firm or legal professional association” shall be commenced within one year after the cause of action accrued.

 

The legislation enacts Section 2305.117 Ohio Revised Code, to establish a statute of repose for legal malpractice claims unless the malpractice claim falls within the exceptions in Section 2305.117 (B) regarding persons within the age of minority or of unsound mind, or the limited discovery exception in Section 2305.117(C). Section 2305.117 provides that no action for a legal malpractice claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the legal malpractice claim. If an action upon a legal malpractice claim is not commenced within four years after the occurrence then, any action on that claim is barred.

 

The legal malpractice statute of repose will provide a date certain for attorneys and the legal profession to end the potentially unlimited discovery for legal malpractice claims. This is similar to the statute of repose for malpractice claims against other professionals including doctors, podiatrists, registered nurses, architects, and engineers. The act is set to take effect on June 16, 2021.

 

OBLIC is carefully studying the impact of this legislation. While it is generally agreed that the application of the law will be prospective, we continue to analyze its practical effect on malpractice claims arising out of acts, errors, or omissions predating the effective date of the new law.

Public Comment sought for Proposed Amendments to Rule 5.5 of Ohio Rules of Professional Conduct.

The Supreme Court of Ohio recently published Proposed Amendments to Rule 5.5 of the Ohio Rules of Professional Conduct and Rule I of the Ohio Rules for the Government of the Bar regarding Out-of-State Licensed Attorney with Ohio Office. The additions to Rule 5.5 would permit a lawyer admitted and in good standing in another US jurisdiction to provide legal services in Ohio if the lawyer is providing services that arise out of, or are reasonably related to, the lawyer’s practice in a jurisdiction where the lawyer is admitted, as long as the lawyer does not:

      • solicit business clients within this jurisdiction or appear before Ohio tribunals;
      • state, imply, or hold himself or herself out as an Ohio lawyer or admitted to practice law in Ohio;
      • create a public presence or profile as being a lawyer based in Ohio; or
      • violate the provisions of Rules 5.4, 7.1 and 7.5.

These amendments address issues in the OBLIC News post on ABA Opinion 495 regarding practicing remotely At that time, it was noted Opinion 495 was written referencing the Model Rules of Professional Conduct.

 

Comments on the proposed amendments should be submitted in writing to: Gina Palmer, Director of Attorney Services, Supreme Court of Ohio, 65 South Front Street, 5th Floor, Columbus, Ohio 43215-3431, or gina.palmer@sc.ohio.gov not later than May 6, 2021. Please include your full name and mailing address in any comments submitted by e-mail.

Updated Protection Orders Take Effect April 15, 2021

New protection order forms were recently adopted by the Ohio Supreme Court for Domestic Violence Protection Order Forms, Stalking and Sexually Oriented Offenses Protection Order Forms and Juvenile Civil Protection Order Forms. The forms which were last updated in 2014, are available in Adobe PDF and Microsoft Word. The forms now include plain language and guidance for victims to provide the court with more complete information.

 

There are ten new forms, including dating violence protection order forms necessary to comply with new legislation. The Supreme Court Domestic Violence Program website includes all the forms and other helpful information. Questions may be directed to Policy Counsel Anne M. Murray at DomesticViolence@sc.ohio.gov.

New Bail Rule Effective July 1, 2021 Addresses Bail Reform

On March 2, 2021, The Supreme Court of Ohio adopted new Rule 5.02 – Bail Schedule of the Rules of Superintendence for the Courts of Ohio. The new rule provides that any bail schedule used by a municipal or county court shall include a rebuttable presumption that personal recognizance is the rule. A bail schedule, as defined, means a schedule covering misdemeanors, including traffic offenses, established by a court pursuant to Crim.R. 46(G). A bail schedule is not to be used for offenses where the judge or magistrate is required by statute to set bail.

 

The rule addresses a Uniform Bail Schedule, stating that if a county consists of more than one municipal or county court, the administrative judge of each court with a monetary bail schedule shall collectively establish a uniform bail schedule for use by those courts by September 29, 2021, and shall biennially review the schedule pursuant to Crim.R. 46(G). If the courts are unable to establish a uniform bail schedule, the courts shall use the model schedule as established by the Supreme Court. If a court has a non-monetary bail schedule, that court shall not be required to adopt a monetary bail schedule.

 

The changes were proposed to implement recommendations by the Ohio Task Force to Examine the Ohio Bail System. The task force, chaired by Montgomery County Common Pleas Judge Mary Katherine Huffman, was comprised of 30 members, including judges; prosecutors; criminal defense lawyers; representatives from law enforcement, the bail industry, and non-governmental organizations; and three state legislators.

COVID-19 Service Concerns

The Supreme Court Commission on Rules of Practice and Procedure has learned that during the current pandemic, the U.S. Postal Service has modified procedures for recipient signatures and Certified Mail to allow USPS employees to sign an electronic “green card” with the name of the person to whom the mail is delivered from a distance, or when the name is not known with the notation “COVID” on the return receipt. The modified procedures also call for postal service employees to follow the normal “Notice Left” process should no one respond at the point of delivery.

 

The Commission has sent an Open Letter to Clerks of Court, the Bench, and the Bar of Ohio noting that in theory, the modified policy of the USPS may still allow service of process substantially in compliance with Ohio Civ. R. 4.1, which contemplates that a return receipt will “show to whom delivered, date of delivery, and address where delivered.” In practice, though, the modified procedure of the USPS is not always followed.

 

The Commission letter indicates that it intends solely to raise awareness of the concerns surrounding the present practices of the USPS related to Certified Mail. Relevant to practicing attorneys, the Commission encourages counsel to consider whether a new effort at obtaining “good” service with Certified Mail, using a process server, or using the Waiver of Service provision in new Civ. R. 4.7 is prudent. Finally, the Commission recognizes that effectuating “good” service not only reduces the potential for litigation involving Civ. R. 60(B) but also assures intended recipients the fair notice to which all litigants are entitled.

 

New Toolkit for Juvenile Judges and Court Administrators

The Ohio Supreme Court issued a new Child Protection Mediation Toolkit for Ohio Juvenile Judges and Court Administrators to assist in the mediation process in child protection matters. This new resource provides information for Courts regarding Child Protection Mediation (CPM), a CPM program checklist and CPM Program Design Guide. It also gives information for Mediators on how to find training for CPM, a checklist to consider during mediation and video resources. The toolkit also includes sample forms. This resource for judicial use will help courts that elect to offer child protection mediation. The Court must still approve whatever resolution is reached at mediation.