MALPRACTICE ALERT! SPRING 2024

Unless your practice area routinely interacts with the insurance industry, making decisions about insurance coverage can be daunting. OBLIC professionals, based in Columbus, are available to answer questions to help you make the best decisions for your practice.   

When considering what limits are appropriate, attorneys should be aware of the distinction between “Inside” and “Outside.” Also known as “eroding limits” or “burning limits,” this terminology refers to the legal costs for your defense if you were to be sued for legal malpractice.   

Selecting a policy with limits of $100,000 per occurrence and $300,000 in the aggregate may meet the minimum identified in Ohio Professional Conduct Rule 1.4, but take caution in selecting truly sufficient coverage that will help ensure that both your defense costs and damages are covered by your limits. As we discuss below, most legal malpractice cases require expert witnesses, contributing to the high cost of defense of legal malpractice cases, which in some cases exceed six figures.  

INSIDE: If you select the policy option where your defense costs are “inside” your limits of coverage, this means your policy limit is diminished by the costs of defending a malpractice claim. Attorney fees paid to your defense attorney will erode policy limits available to pay a settlement or judgment.  

OUTSIDE: Selecting the policy option with defense costs “outside” policy limits helps ensure that the full policy limit is available to pay a judgment or settlement to the plaintiff. The costs of defending a legal malpractice case are paid by your insurer and do not erode your policy limits.   

For an illustration of this distinction, here is a hypothetical scenario:   

An attorney in your firm is sued for legal malpractice for failing to discover and divide an asset in a divorce case. The other party has since dissipated the asset and the former client is now seeking damages against the firm and insured attorney. In defense of that attorney, an expert witness is needed to establish the standard of care, driving up the costs of defense. The asset was worth $250,000, and the former client is willing to settle for $125,000. Your policy limits are $150,000 per occurrence with a $5,000 deductible. 

As you can see above, it’s not a stretch to assume a significant shortfall if defense costs are “Inside” policy limits.  

If you have any questions about your policy limits, coverage, or benefits of your OBLIC LPL policy, don’t hesitate to call or email.  

OBLIC is pleased to be your malpractice insurer. We are proud of our legacy as your Ohio Bar Liability Insurance Company. OBLIC was founded in 1978 by Ohio attorneys in the Ohio State Bar Association in response to the increasing cost for malpractice insurance available through existing insurance carriers and wrote its first policy in 1979.  

Initially, there were two classes of stock: Class A for purchase by Ohio lawyers and Class B to be purchased by the Bar Association. Each potential policyholder purchased three shares of stock to be eligible to purchase insurance. As was always the plan, in 1998 all outstanding Class A shares were redeemed, making the Ohio Bar the sole owner and shareholder.  

OBLIC is celebrating forty-five years of fulfilling its mission to protect Ohio lawyers and their clients. Our basic beliefs reflect our goals. OBLIC insurance policies meet the needs of our insured attorneys by providing the right coverage with the right service at the right price.  

OBLIC consistently gives personal, prompt service that educates, anticipates and responds to our insured attorneys’ needs. We continue to earn the trust of our insured attorneys, their clients, and the legal community by handling claims ethically and with experienced defense attorneys throughout Ohio.   

OBLIC is a proud member of the Ohio Bar family. We enhance the professional life of the legal community by supporting and participating in the Ohio Bar.  

Founded by Ohio attorneys for Ohio attorneys, OBLIC has been here since 1979 and is here for you now! We encourage insured attorneys to take advantage of our industry-leading legal team! OBLIC’s all Ohio-licensed attorneys Fred, Carl, Grant, Merisa, and Gretchen are always happy to help. Let us know how we can assist YOU! 

Clarity in the scope of the representation is crucial. Attorneys serving as corporate counsel are strongly encouraged to establish a bright line boundary between their representation of the company or organization as a whole versus individual representation of a director, officer, shareholder, or member. Blurring those lines can lead to major challenges. Take an example recently in legal news: In January, a judge in the state of Delaware ruled that Elon Musk’s $55.8 billion compensation package was “unfathomable” and unfair to Telsa shareholders. In the ruling, the trial court evaluated the fairness of the deal. One fact that resulted in the court setting aside the compensation package was the CEO’s relationship with general counsel.  

In finding that there was no meaningful negotiation, the court noted that the people with a fiduciary duty to the company apparently neglected that role due to their personal relationships with Musk. According to the ruling, a key employee with such fiduciary duty to the company was General Counsel Todd Maron, who had represented Musk in his divorce and “whose admiration for Musk moved him to tears during his deposition.” At trial, Maron and others also asserted that there was no adversity in the negotiations for the compensation package, and they viewed it as a cooperative approach. The decision notes that those tasked with negotiating on behalf of the corporation also neglected to review any benchmarking data or external analysis of objective appropriateness of the deal. All of this raised the question of who did General Counsel represent: Tesla and its shareholders, or its CEO Elon Musk? 

Ohio Rules of Professional Conduct address standards for representing an organizational client. In limited circumstances, the Rules permit a lawyer representing the organization to also represent an individual associated with the organization. Rule 1.13 (e) provides: 

A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7. If the organization’s written consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization, other than the individual who is to be represented, or by the shareholders. 

Even when an attorney representing a corporation receives consent as required by the Rule to represent an individual member of the organization, doing so escalates the risk of a malpractice claim or a grievance allegation. Representing individuals in one matter while continuing to represent the organization may very well give rise to conflicts of interest in the event the parties become adverse. Further, owners, founders, or entrepreneurs may not distinguish themselves individually from a closely-held company. Though not quite $56B, some recent high-cost claims have materialized due to perceived or real competing duties owed by counsel to multiple parties.  

Finally, in the event that an individual director, officer, shareholder, or member’s interests are adverse (even if not adversarial!) to the interests of the organization, attorneys are strongly encouraged to advise the individual in writing of the attorney’s duty to the organization and advise the individual to seek independent legal representation. See Comments [10] and [11] to Rule 1.13. 

Your OBLIC LPL policy includes a complimentary ethics consult (up to 1 hour) per insured attorney per policy period. If you find yourself caught between your duty to the organization and your relationship with an executive or member of the organization, please contact Loss Prevention for a confidential ethics consult with one of our experienced ethics attorneys. 

We continue our primer on the elements of legal malpractice in this quarter’s malpractice alert. Understanding the elements of the tort may help put into context loss prevention recommendations and malpractice avoidance tips. Last quarter, we explained that a duty of care must exist and how that duty arises. This article discusses the second element of a legal malpractice tort: breach of duty. 

Breach of Duty: Violating an Established Standard of Care 

Once duty has been established, an attorney owes their client a certain level of professional competence. If an attorney negligently or intentionally fails to meet a reasonable level of professional competence, the attorney has breached the standard of care owed to the client. But, as litigator Michael LeBoff explains for the ABA, “Decisions that were reasonable at the time may look foolhardy with the benefit of hindsight. … [N]ot every mistake rises to a breach of the duty of care.” 

To demonstrate a breach of duty, the plaintiff must demonstrate that the lawyer failed to use the degree of care, skill, and diligence ordinarily or reasonably used by attorneys practicing in the same or similar circumstances. Unless the action is so apparent that it would be understood by a layperson, this is normally done through expert testimony. See, e.g. McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112 (1984). 

As mentioned above, errors in judgment aren’t necessarily breaches of the standard of care. Breaches of the standard of care often manifest as missed filing deadlines with no or unsuccessful efforts to repair the error, failure to perform due diligence, conduct discovery, or reasonably necessary research, or, as seen in RevoLaze LLC v. Dentons US LLP, 2022-Ohio-1392 (8th Dist. April 28, 2022), cert. denied, disclose or remedy a conflict of interest. 

In RevoLaze, the multinational law firm Dentons represented clothier The Gap through their Canada office. The US office accepted representation of Ohio corporation RevoLaze, LLC in an International Trade Commission case in which The Gap was named as a defendant. Dentons US claimed that either no conflict existed because the US office was separate from the Canada office, or that they had obtained a blanket waiver of conflict from The Gap. The Court rejected Dentons’ claims and found that the expert opinions presented at trial supported the finding that Dentons breached the standard of care owed to RevoLaze. The experts opined that Dentons US failed to act with reasonable care when they told their client they already had a waiver of conflict, failed to seek an independent opinion regarding the conflict, and took unreasonable risk in being disqualified due to the conflict. 

RevoLaze is an example of how breaches of the Rules of Professional Conduct can give rise to legal malpractice. OBLIC is proud to continue to offer industry-leading benefits for insureds including complimentary ethics consults with experienced ethics attorneys, discretionary claim repair and support with licensed Ohio attorneys, and loss prevention hotline staffed by Ohio attorneys with more than 45 years of combined experience.  

Stay tuned for Navigating Legal Malpractice – Element #3: Proximate Cause in our next quarterly edition of Malpractice Alert! 

Ohio Board of Professional Conduct Opinions 

The Ohio Board of Professional Conduct 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. 

As of this writing, the Ohio Board of Professional Conduct has released two Advisory Opinions in 2024: 

• 24-01: In-House Lawyer Representation of Corporation’s Customers 

• 24-02: Communication While Serving in a Dual Role as Guardian ad Litem and Attorney 

Opinion 2024-01: While dual employment may often be acceptable for attorneys, the Board recently analyzed whether an in-house lawyer can provide legal representation to the corporation’s customers. Whether representing buyers or sellers after completing title work through an agency, or representing taxpayers in legal proceedings after providing tax advice through a company, the Board discouraged such legal representation: 

Syllabus: “In most circumstances, a corporation’s in-house lawyer should avoid providing legal representation to a corporation’s customers on matters relating to issues which the corporation has previously provided general services.”  

From the Advisory Opinion: 

“An inherent conflict of interest [exists] when a service provider’s own attorneys * * * furnish legal services to the provider’s customers.” In re First Escrow, Inc., 840 S.W.2d 839, 1992 Mo. LEXIS 123, citing Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650 (1934). 

Although a material limitation conflict may be waived by both the corporation and its customer, other ethical considerations, discussed below, must be evaluated by the in-house lawyer prior to any representation of the corporation’s customers on matters related to the general services provided by the corporation. 

Advisory Opinion 24-1 also identifies Rule 7.2 and 7.3 limitations:

First, an in-house lawyer cannot recommend his employment to a person who has not sought the lawyer’s advice. Prof.Cond.R. 7.3(a). Nor should the lawyer request that the corporation recommend or promote to its customers the use of his or her services as private counsel.

The Advisory Opinion recommends and identifies the following ethical issues:

Based on the foregoing, the Board recommends that in-house lawyers avoid the representation of its corporate employer’s customers on issues related to the services previously provided by the corporation.

However, in limited circumstances it may be ethically permissible for an in-house lawyer to represent a customer of the lawyer’s corporate employer.

• • the lawyer must resolve the potential or actual material limitation conflict with appropriate waivers,
  • the lawyer must guard against corporate interference with the lawyer’s representation of the customer,
  • the lawyer cannot provide anything of value to the corporation for the recommendation or referral of the lawyer’s services, and
  • the lawyer must ensure that the corporation is not offering legal services by and through the lawyer that violates Ohio law against the unauthorized practice of law.

Opinion 2024-02: Also related to a dual role, the Board applied Rule of Professional Conduct 4.2 to the question of whether an attorney appointed in the dual role of Guardian ad litem and child’s attorney may communicate with a represented person without the permission of counsel.

Syllabus: “A lawyer appointed to serve in a dual role as a child’s attorney and guardian ad litem may not communicate with a represented person without permission of counsel. If the communication is authorized by law or court order, or the communication is solely to obtain information about how to contact the child or to schedule an appointment with the child, then a lawyer appointed in a dual role may contact a represented person without permission of counsel.”

Rule of Prof. Conduct 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL directs:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Courts often appoint an attorney to serve as the Guardian ad litem and attorney for the child. GALs are well-versed in the rule that if a conflict arises between the GAL’s best-interests recommendations and the child’s wishes, the GAL must withdraw as attorney for the child and a new attorney is appointed.

In this Opinion, the Board advises that an attorney appointed as the attorney for the child or in the dual capacity, may only communicate directly with a represented party with permission from the contacted person’s attorney or, in exceptional circumstances, when the Court issues an order allowing contact absent permission. The Board noted that this direct communication restriction does not apply when the communication is limited to what is necessary to contact the represented child or to schedule a meeting with the represented child.

ABA Opinions

The American Bar Association Standing Committee on Ethics and Professional Responsibility also produces advisory opinions interpreting Model Rules of Professional Conduct to guide attorneys’ ethical conduct.  

The Standing Committee issued Formal Opinion 509 on February 28, 2024: Disqualification to Prevent the Misuse Use of “Confidential Government Information.” Applying Model Rule 1.11(c) (which is substantially similar to the Ohio equivalent), the Opinion advises that attorneys both currently or formerly holding a public sector role in which they obtained “confidential information” regarding a party should not privately represent an adverse party. The opinion extends guidance across public sector roles – both elected and unelected, and legal and non-legal, such as a legislator, municipal manager, police officer, or clerk. 

“Confidential government information” is defined fairly narrowly as: 

information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. 

Further, Model Rule 1.11(c) does not authorize the government, client, or affected person to give consent to the conflict. See Footnote 24 of the Opinion. However, it may be valuable to note that Ohio and Model RPC 1.11(C) permit a firm with which the lawyer is associated to represent a client adverse to a party for whom confidential governmental information is obtained so long as the disqualified lawyer is fully screened and derives no fee from the matter. 

In addition to these three recent advisory opinions, we encourage you to see our recent article about a Florida Advisory Opinion on Lawyers’ Use of Generative Artificial Intelligence. 

HB 179 Regards vicarious liability in tort actions; statutes of repose was passed the House and is currently pending the Senate Judiciary Committee. It would provide that the tolling of the limitations period during the defendant’s absence or concealment does not apply to the statutes of repose. OSBA support is limited to changes relating to statutes of repose. 

Amendments to Attorney Specialization Rule 

Effective April 15, 2024, the Supreme Court adopted amendments to the Supreme Court Rules for the Government of the Bar of Ohio, Gov.Bar R. XIV, Sections 1 through 8 and Appendices IV and VI, and Prof. Cond. R. 7.4 on attorney specialization.  

This amends Rule 7.4 on attorneys as specialists. It removes the requirement that the lawyer be certified as a specialist by an organization approved by the Supreme Court Commission on Certification of Attorneys as Specialists. An attorney applying for certification will have to meet minimum standards, including that the attorney is in good standing, registered for active status and covered by professional liability insurance through an insurance company authorized to transact business in Ohio in an amount not less than five hundred thousand dollars per loss and demonstrated ability to pay all claims that fall within the liability insurance deductible. 

Judicial Votes Count 

Attorneys are often asked the question, “Who should I vote for in this judicial race?” The Judicial Votes Count website provides information on all the judicial candidates to vote on by county, including the Ohio Supreme Court, Court of Appeals, and Common Pleas Courts. The website also has information on why judicial votes count, Ohio’s court system and voting in Ohio. This is a good resource to share with clients, friends, and family. 

Tasks for this quarter will focus on planning for lawyers and their firms. Last quarter we encouraged reviewing office procedures manual, implementing a plan to cover short-term absences, and designating a successor attorney. 

April 

Ohio’s unpredictable Spring weather presents an optimal time to create a Business Continuity Plan. It will focus on a business impact analysis of how your office would be affected by events such as physical damage to your office, damage or breakdown of systems, power outages or IT issues. Identifying recovery strategies will help you organize and assemble your business continuity plan. Visit the OBLIC Cyber Toolbox Knowledge Center for instructions and forms. If you need the password for this, please contact us. 

May 

Now is a good time to review your law firm website. Whether you work with a website designer or manage the website yourself, be sure the information is up to date. Consider adding current pictures for attorneys and staff. Include information on firm members’ latest professional involvement and community outreach. Ask yourself, what can you do to make your website more user friendly? What would YOU want to be able to learn from your website if you were looking for an attorney?  

Also be sure all your listings in local, state and affinity bar association directories are current. Have you updated your OSBA Member Directory Information? This is an excellent resource regularly viewed by members of the public seeking an attorney.  

June 

Attorneys whose last name begins with a letter from M through Z now have six months remaining to complete and report the minimum of 24 credit hours of CLE, including 2.5 hours of professional conduct credit, by December 31, 2024. Don’t wait until the last minute! Think about attending CLE in-person or online from your bar association. Visit the OSBA CLE Store and OSBA Member Tools & Benefits for Discounted and Complimentary CLE. 

The 2024 Annual Meeting of the OSBA will be a 2-day event on May 6-7 in Columbus at locations around Capitol Square. Register Now! You won’t want to miss anything! The Welcome Reception will be held at the Ohio Supreme Court from 5:00 PM – 7:00 PM on Monday, May 6.  

The Renaissance Columbus Downtown Hotel has room blocks for May 6 available by calling 877-901-6632 or by clicking here. Don’t delay! Cut Off date to reserve a room in the block is April 15, 2024. 

District Meetings for all 18 OSBA Districts will commence on Tuesday, May 7 at 10:00 AM at the Athletic Club of Columbus, which is very walkable from the Renaissance Hotel. After the District Meetings, the Recognition Luncheon to honor 50 and 65-year members will follow at the Athletic Club. Please note the Luncheon is the only event for which there is a charge, and all other events are complimentary for OSBA members. You will want to register soon to attend!  

After lunch, the events move to the Ohio Statehouse Atrium for the Council of Delegates Meeting and General Assembly Meeting. A Complimentary CLE will round out the afternoon in the Atrium. The Annual Meeting will conclude in the Statehouse Rotunda with a Bench-Bar Legislative Reception at 5:00 PM. For more information, see the Ohio Bar Annual Meeting page. 

We look forward to seeing you there!