MALPRACTICE ALERT! SPRING 2022

Adjustments to dollar amounts in certain sections of federal bankruptcy statutes take effect on April 1, 2022. These adjustments reflect the change in the (CPI) Consumer Price Index for All Urban Consumers and affect debt limits for individuals filing under Chapter 13 and minimum aggregate claims for an involuntary Chapter 7 or Chapter 11 petition. Seven Official Bankruptcy Forms and two Director’s Forms will also be amended with these adjusted dollar amounts. The changes are made pursuant to the automatic three-year adjustment in Sec 104, Title 11 U.S. Code. The adjustment does not apply to cases commenced before April 1, 2022. See Federal Register Notice for details.

The Ohio Revised Limited Liability Company Act took effect on February 11, 2022. The New LLC Act replaces Chapter 1705 of the Ohio Revised Code, enacted in 1994, with Chapter 1706 of the Ohio Revised Code.

The new Act changes management structure and authority by eliminating the distinction between member-managed and manager-managed limited liability companies. A person’s ability to act as an agent and bind the limited liability company can be authorized by (1) the operating agreement; (2) decisions of members in accordance with the operating agreement; (3) a Statement of Authority (Form 613) filed with the secretary of state’s office; or (4) the LLC Act’s default rules.

Another change the Act permits is the formation of Series LLCs. Each series, in its own name, may enter into contracts; sue or be sued; hold and convey title to assets of the series, including real property, personal property, and intangible property; and grant liens and security interests in assets of the series. This structure provides liability protection to each series, as assets owned by one series are shielded from the risk of liability of others within the same series LLC.

The new LLC Act creates a statutory framework to force creditors and claimants to resolve matters against a dissolved LLC within certain deadlines after the claimant or creditor is given notice.

The old filing forms used by limited liability companies have been updated. The Secretary of State’s Office no longer accepts the old forms as of February 11, 2022. The new forms can be found on the Secretary of State’s website.

On March 8, 2022, the Ohio Supreme Court adopted the proposed amendments to the Ohio Rules of Superintendence. These amendments included several proposals by the Ohio Supreme Court’s iCourt Task Force including an amendment to Rule 5 that now requires lower courts to adopt by local rule a technology plan that must include a strategy for implementing technology for conducting remote hearings. The amendments will become effective July 1, 2022. The Ohio Supreme Court has not yet taken action on the remaining proposed rule amendments.

The first public comment period has opened for proposed changes to attorney CLE requirements. Two major revisions included in the proposal are (1) removing the CLE self-study limit for attorneys; and (2) allowing CLE credit for training and service as a poll worker.

The existing self-study limit has been waived for three consecutive CLE compliance periods due to the pandemic. According to a survey by the Commission on Continuing Legal Education, attorneys overwhelmingly preferred no self-study cap.

For the past four consecutive elections, the Ohio Supreme Court has issued temporary orders allowing CLE credit for attorneys who serve as poll workers. The proposed amendments would make allowance for these CLE credits permanent.

The proposals do not extend to judges and magistrates. Judicial officers are prohibited by the Ohio Code of Judicial Conduct from participating as precinct election officials and the Ohio Supreme Court’s Judicial College Board of Trustees unanimously voted to keep the self-study cap for judges and magistrates.

Public comments must be made in writing by mail or email by April 21 to:

Gina Palmer
Attorney Services Director
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, OH 43215-3431
[email protected].

Medina County Bar Assn. v. Schriver, 2022-Ohio-486

Conduct: The lawyer was retained to represent a client on all matters relating to fraud allegedly perpetrated against the client. In a related matter, a bank was pursuing the client for a debt that the client alleged he did not owe. The lawyer agreed to respond to the bank, but failed to do so. The lawyer then failed to respond to the client’s attempts to contact him, failed to refund the unearned portion of a retainer paid by the client, and failed to return the client’s file. The lawyer then failed to cooperate with the disciplinary process until he was served with a disciplinary complaint.

Violation: The Board found that the lawyer violated Rule 1.3 by failing to act with reasonable diligence in the representation of the client, Rule 1.4(a)(3) by failing to keep the client reasonably informed, Rule 1.4(a)(4) by not complying with requests for information; Rule 1.16(d) by not returning the client file; and Rule 1.16(e) for failing to refund the unearned fee. The Board also found that the lawyer violated Rule 8.1(b) and Gov.Bar R. V(9)(G) for failing to respond to demands for information in connection with a disciplinary matter.

Ruling: The Court adopted the Board’s findings of misconduct and recommendation of public reprimand. Three justices concurred with the finding of violation but dissented on the sanction. The dissent would have imposed a six-month stayed suspension with a monitoring requirement.

Disciplinary Counsel v. Smith, 2002-Ohio-840

Conduct: The lawyer was accused of misconduct in four separate client matters. There were several allegations of neglect of client matters and lack of client communication. The lawyer was also accused of mismanagement of client funds in two cases. In one case the lawyer charged a flat fee without advising the client that the fee was earned upon receipt or that the client would be entitled to a refund if the lawyer did not complete the representation. The lawyer did not deposit the fee into a trust account. The lawyer was unable to complete the representation and could not refund the unearned fee. The lawyer was also accused of misconduct for signing his client’s name on a plea-in-absentia form and notarizing the signature. The client denied giving the lawyer authorization to either sign her name or change her plea.

Violation: The Board found that the lawyer made a false statement of fact to a tribunal in violation of Prof.Cond.R. 3.3(a) by notarizing a false signature and engaged in dishonesty and conduct prejudicial to the administration of justice in violation of Prof.Cond.R. 8.4. The lawyer also violated Prof.Cond.R. 1.15(c) by failing to deposit funds into a trust account and Prof.Cond.R. 1.16(d) and (e) for failing to return client files and refund unearned fees. The Board also found violations of Prof.Cond.R. 1.1 (competence); 1.3 (diligence); 1.4 (communication) and 3.4 (knowingly disobeying the rules of a tribunal).

Ruling: The Court adopted the Board’s recommendation and imposed a two-year suspension with the final six months stayed. The sanction was influenced by the aggravating factor that the lawyer had a record of prior discipline for some of the same types of misconduct involved in this case, including failing to diligently represent clients, failing to deposit funds into a trust account and making a false statement to a tribunal.

On February 4, 2022, the Ohio Board of Professional Conduct issued its first Advisory Opinion of 2022. In Opinion 2022-01 the Board was asked whether a county prosecuting attorney, who employs a part-time assistant prosecutor, may appear before a part-time municipal court judge who also employs the same part-time assistant prosecutor in a private law firm. The Board concluded that the prosecuting attorney would not be prohibited from appearing before the judge unless the prosecuting attorney’s relationship with the part-time assistant prosecutor would materially limit the prosecuting attorney’s representation of county before the judge.

The current proposed amendments to the Ohio Rules of Civil Procedure and Rules of Juvenile Procedure include changes that would allow judges to conduct jury trials with all participants joining remotely. The proposal has raised many questions from lawyers including the very practical question of how a remote jury trial would actually work.

The judge and the resources of a court will determine how it works. One example of how a fully remote jury trial has worked was provided by Judge Marsha Pechman of the United States District Court for the Western District of Washington. In a presentation published by the Court, Judge Pechman and her staff shared their experience after conducting multiple fully remote civil jury trials to verdict.

Click for more information and to view Virtual Civil Jury Trial seminar with Judge Pechman’s comments.

The proposed changes to the Ohio rules do not include a provision that would allow fully remote jury trials in criminal cases. However, there are provisions that would allow other aspects of a criminal case to be handled remotely. In its Report on Improving Court Operations Using Remote Technology, the Ohio Supreme Court’s iCourt Task Force separately addressed criminal cases, with an excellent schematic of a Walkthrough of a Remote Criminal Case, see pages 73-74.

For the first time in two years, the Ohio State Bar Association will hold its Annual Meeting in-person. You won’t want to miss this meeting to be held at the Ohio Statehouse. The event will include the OSBA Council of Delegates Meeting, recognition of lawyers for their service to the Bar, and updates from OSBA President David Lefton, OSBA Executive Director Mary Amos Augsburger and Ohio Supreme Court Chief Justice Maureen O’Connor.

Plan to attend the CLE: Executive v. Judicial v. Legislative Branches– Separate but Equal? and receive 1 hour of free CLE. Conclude your day with the complimentary 2022 Bench-Bar Legislative Reception. Click to Register today! We’ll see you there!