MALPRACTICE ALERT! SPRING 2023

Am. Sub. Senate Bill 288 takes effect April 4, 2023. Perhaps the best-known provision of the criminal law legislation expands the texting-while-driving prohibition to prohibit a person from using, holding or physically supporting an electronic wireless communication device (EWCD, more commonly called a mobile device) while driving. The new law generally allows only limited and mostly hands-free use of a mobile device while driving and makes use of a mobile device while driving a primary offense. Warnings are to be issued for violations of the ordinance over the first six months following its effective date, with hefty penalties for violations following this initial six month period.

Another provision of note clarifies the duty of a “mandatory reporter” of adult abuse, neglect, or exploitation to report such conduct, adding a “knowingly” mens rea regarding the duty.  A mandatory reporter violates this duty if he or she has reasonable cause to believe that an adult is being abused, neglected, or exploited and “knowingly” fails to immediately report that belief. Pursuant to R.C.5101.63(A)(2), attorneys are mandatory reporters. See Supreme Court website Elder Abuse Mandatory Reporter Training Materials.

The legislation also makes changes to criminal record sealing and expungement, modifying the list of conviction records that cannot be sealed and the timeframe when certain conviction records may be sealed. The new law additionally creates the offense of “strangulation” and provides that there is no period of limitations for the prosecution of a conspiracy to commit, attempt to commit, or complicity in committing “aggravated murder” or “murder.” Click for the full text of SB 288 as enrolled and the Final Analysis of the Ohio Legislative Service Commission.

In the last 20 years, employment-related lawsuits have increased by 400% and lawsuits for wrongful termination have increased 260%.  Employment Practices Liability Insurance (“EPLI”) coverage provides benefits and protection in the event the firm or an attorney covered in the firm’s policy is sued for an employment-related tort, discrimination, or breach of employment agreement.  This inexpensive coverage offered by OBLIC provides limits of liability of $100,000 per claim/aggregate and a per claim deductible of $5,000.Comprehensive risk-management tools including employment training programs, compliance guidance, and online resources are provided by OBLIC as a compliment to this coverage, and higher policy limits are available subject to additional underwriting.

Check out our suggestions later in this email in the “Administrative Tasks” section for tips and guidance you can start working on now.  To learn about additional EPLI coverage, contact our OSBA Insurance Agency staff, Rick Creel and Danna Blackburn.

Are you approaching retirement?  If so, you should know that the Ohio State Bar Association offers the OSBA Senior Partner Program (an initiative of the OSBA Senior Lawyers Section) to connect lawyers with a “seasoned” lawyer to address retirement questions.

The Ohio Board of Professional Conduct has issued two Advisory Opinions this year.

• Opinion 2023-01 opines that a judge may not (directly or indirectly) solicit donations for use as rewards or incentives for participants in a specialty docket program.
• Opinion 2023-02 determined that a nonprofit legal aid lawyer may engage in direct in-person solicitation of an individual who may benefit from representation when the lawyer will receive no fee or remuneration in connection with the representation.

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.

Effective July 1, 2023, Gov. Bar R. VI is amended to change attorney registration fees. Beginning with the 2023-2025 registration biennium, the registration fee for active attorney registration is $400. Then, beginning with the 2025-2027 registration biennium, the registration fee is $450. The Court noted it has been 16 years since the last fee increase. Also beginning July 1, 2023, the attorney registration process will be completed online.

This information is crucial for all Microsoft Outlook users. Microsoft released its monthly security update for March 2023, via its “Patch Tuesday” update, which among other things fixed a critical flaw exploited by a hacking group linked to Russian military intelligence.  The flaw allowed hackers to steal credentials simply by sending an email to an unpatched system. The update by Microsoft also fixed another zero-day vulnerability related to Windows SmartScreen. Overall this patch addressed 101 vulnerabilities.

All outlook users should patch Outlook devices ASAP! See CVE-2023-23397 and CVE-2023-24880. Microsoft recommends adding users to the Protected Users group in Active Directory and blocking outbound SMB to mitigate the threat if patching is not immediately possible.

Use the extensive resources on our OBLIC website for your practice. Here’s what to look for under our Resource tab:

• For Policyholders Enter your keyword search for OBLIC articles on your topic.
• Loss Prevention & Ethics Hotline Lists our contact information.
• Malpractice Alerts! Archived issues of our Quarterly publication.
• OBLIC news, events and updates Enter keywords to access OBLICAlerts & more.
• Cyber Toolbox Data breach/cyber risk management information exclusively for OBLIC policyholders (If you forgot the password – just contact loss prevention).
• IOLTA Spreadsheet A complimentary tool for our policyholders that makes   tracking client funds easier.

We’ll tell you more about our website in another issue!

April  Let’s use this month to open the windows and get some fresh air on meeting goals set for 2023. The first quarter of 2023 went quickly!  Review your progress on goals so far. Consider how current habits and routines have contributed toward or inhibited success.

No goals set?  It’s not too late! Need a suggestion? Conduct a cyber audit.

May  After conducting the cyber audit, implement cyber training for all staff. Be sure everyone is using multi-factor authentication (MFA) for all devices.  As an additional incentive, know that the Cybersecurity and Infrastructure Security Agency (CISA) continues to encourage implementation of MFA. Click on the link to watch videos on MFA.

June  Review your closed files and record retention policy. If your files are stored electronically, be sure they are adequately backed up. See OBLIC Cyber toolbox for Sample Data Backup and Retention Policy. If you have paper closed files, be sure to have a list of all closed files that identifies where they are stored. Follow your record retention policy and know that it’s not too late to adopt one. See Managing Client Files & Trust Accounts from the Office of Disciplinary Counsel.

Look for OBLIC Loss Prevention Attorneys presenting CLE at Spring OSBA District Meetings. In the 1-hour professional conduct CLE Tips to Ethically Exceed Your Client’s Expectations you will learn ethical tips to reach clients and enhance your practice using OSBA web resources. Click to see the Spring District Meeting Schedule and register.

OBLIC is proud to again sponsor the Ohio State Bar Association Annual Meeting!  The in-person event will be returning this year to the Ohio Statehouse on Tuesday, May 9.  The event will include the OSBA Council of Delegates Meeting, recognition of lawyers for their service to the Bar, passing of the gavel to President-Elect Michelle Kranz, and updates from OSBA CEO Mary Amos Augsburger and Board of Governors President Judge Dean L. Wilson.

Plan to attend a complimentary 1-hour CLE on Civility and conclude your day with the Bench-Bar Legislative Reception in the Rotunda co-hosted by the Ohio Access to Justice Foundation, the Ohio Judicial Conference and the Ohio State Bar Association.  Click to Register today!  We’ll see you there!