MALPRACTICE ALERT! SUMMER 2021

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

For many reasons, we’re glad summer is here!  It’s been an interesting time for the legal profession. This issue of Malpractice Alert will update you on the many legal developments that are emerging and taking effect. As always, please let us know if you have questions.  All of us at OBLIC are here to help you!

 

Gretchen K. Mote, Esq.                                                            Monica Waller, Esq.
Director of Loss Prevention                                                   Senior Loss Prevention Counsel

September 1st Ohio Attorney Registration Deadline

Ohio attorneys must register and pay the registration fee for the 2021-2023 Biennium by September 1.  The biennium is effective from September 1, 2021 to August 31, 2023. The requirement applies to all attorneys with the registration status: active, corporate, emeritus pro bono, and temporary admission as military spouse attorney.  Inactive attorneys are not required to register, but they must keep the court current on their contact information for residence and office addresses, office telephone number, and residence or office email.  The registration fee is $350. for all categories, except emeritus pro bono, which is $75.

Attorneys may register online using the attorney services portal or by U.S. mail.  The Attorney Services Portal User Guide provides useful information for this online tool.  The Court strongly encourages online registration as it is processed immediately with the attorney receiving a confirmation sent by email.  45,101 Ohio attorneys are required to register.  Online registrations must be completed by 11:59 p.m. EDT September 1 to be deemed timely.  Mailed registrations will be deemed timely if postmarked on September 1 or earlier.

Don’t confuse the requirement to register for the 2021-2023 Biennium with the requirement in the Ohio Rules for the Government of the Bar, Rule X. – Continuing Legal Education.  Rule X. requires that attorneys complete a minimum of 24 hours of approved continuing legal education for each two-year compliance period, including 2 ½ hours of professional conduct credit.  Attorneys with the last name that begins with a letter A – L must complete and report their CLE requirements on or before December 31 of each odd-numbered year.  If your last name begins with A – L, in addition to registering for the biennium by September 1st, you must report your CLE hours by December 31st.  If you haven’t completed your biennial registration, take a moment now, click on the link to Access Online Attorney Services and get it done!

 

Tips for Keeping Your Client Data Safe

Throughout the pandemic, OBLIC warned of the increased dangers to electronic data from hackers and phishing scams.  Now that we’re entering a new phase of the pandemic, we want to remind attorneys that the dangers have not passed!  Ohio Rule of Professional Conduct RULE 1.6 – Confidentiality of Information requires that a lawyer make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to client data.

 

Visit the OBLIC Cyber Toolbox for comprehensive resources for developing your IRP and training your lawyers and staff.  The Cyber Toolbox has great information to help you implement cybersecurity procedures in your firm.

Here is a checklist with strategies for your cybersecurity:
  • Develop and implement policies and protocols for electronic data
    • Implement access controls
    • Require two factor authentication
    • Use secure passwords or passphrases
    • Encrypt email, laptops, tablets, cellphones
    • Remote access via VPN – never public Wi-Fi
  • Update software and hardware
    • Patch to keep current
    • Check anti-virus and anti-malware
    • Have secure firewalls
    • Use effective backups:  3-2-1
      • 3 copies of data
      • 2 different backup media
      • 1 offsite
  • Adopt an Incident Response Plan – IRP
    • Rehearse what would happen in the event of a data breach
  • Train all lawyers and employees on cyber security
    • 80% of cyber-attacks happen due to opening malware
  • Evaluate your cyber risk and determine if additional insurance coverage is advisable

Office of Disciplinary Counsel Unveils IOLTA Resources

The Office of Disciplinary Counsel, in cooperation with the Ohio Judicial College produced an interactive video to provide attorneys with an overview of basic trust accounting procedures.  The video also informs how to account for different types of fees, how to avoid investigation and respond to a letter of inquiry, and how to identify common scams perpetrated on lawyers and their trust accounts.  The free online class, Trust Accounting 101, is approved for 1 hour of professional conduct CLE credit.  Experienced attorneys as well as new attorneys will find this CLE educational.

 

The website of the Office of Disciplinary Counsel also features an IOLTA FAQ section that answers commonly asked questions about IOLTA.  Sample IOLTA Ledgers and Documents are also provided.  OBLIC informed you of the new Attorney Unclaimed Funds in our OBLIC Alert sent on April 30, 2021.

 

Recent Ohio Supreme Court Decisions of Interest

In Ostanek v. Ostanek, Slip Opinion No. 2021-Ohio-2319, decided July 13, 2021, the Ohio Supreme Court found that R.C. 3105.17(I) does not contain any explicit language to divest domestic relations courts of subject-matter jurisdiction over divorce actions and the division of marital property and that any error in the exercise of its jurisdiction by a domestic relations court in issuing an order that divides retirement benefits in a way that modifies a divorce decree in violation of R.C. 3105.17(I) renders the resulting order voidable, not void ab initio.

This case originated with a divorce in 2001, wherein the domestic relations court reserved jurisdiction over the matter to issue a QDRO to divide the husband’s federal pension.  In 2013, as the ex-husband approached retirement, the required “COAP” (certified copy of a court order acceptable for processing) was adopted by the court and directed to the U.S. Office of Personnel Management (OPM).    The ex-husband retired and the ex-wife began receiving benefits.  Although the ex-husband contacted OPM several times, he was not successful in changing the apportionment of his retirement benefit.

 

In 2018, the ex-husband filed a motion to vacate the COAP in the domestic relations court and contacted his Congressional representative, after which OPM addressed the overpayment to the ex-wife.  The domestic relations court denied the motion to vacate, finding the ex-husband failed to file it in a reasonable time and that the COAP had not improperly modified the divorce decree.

 

On appeal, the ex-husband argued the domestic relations court violated R.C. 3105.17(I) by enlarging the ex- wife’s share of the pension beyond the divorce decree and because of that, the COAP was void and he was entitled to challenge it at any time. The Eleventh District concluded the method of calculation in the COAP did not modify the divorce decree, but by providing a survivor benefit in the COAP there was an enlargement of the divorce decree division of property and made that part of the COAP void. The Ohio Supreme Court agreed to hear this case and issued its decision.

There are several “take-aways” from this decision.  First, consider the 20-year length of time between the divorce and this decision. Whether the attorney will have on-going involvement with the QDRO and keep current contact information for the client and other party should be clarified.  This situation presents a long time for a potential malpractice claim to develop and should be closely monitored.

 

Another point is that the parties disputed the limits of the subject-matter jurisdiction of the domestic relations court.  The decision included a lengthy analysis of subject-matter jurisdiction, noting that when a court lacks subject-matter jurisdiction, any order by the court is void.  The decision also indicated the Supreme Court declined to review the ex-wife’s proposition of law that the COAP did not modify the divorce decree, and therefore, the court of appeals’ conclusion that the domestic relations court modified the decree by giving the ex-wife a survivor benefit when the decree did not, remains the law of the case.

In BST Ohio Corporation et al. v. Wolgang, Slip Opinion No. 2021-Ohio-1785, decided May 27, 2021, the Supreme Court held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award.  The three-month period set forth in R.C. 2711.13 is not a guaranteed time-period in which to file a motion to vacate, modify, or correct an arbitration award.

This case arose when, under the terms of an operating agreement between the parties, BST Corporation initiated binding arbitration in Cuyahoga County Common Pleas Court involving actions of Wolgang, alleging mismanagement of a warehouse property run by a company jointly owned by BST and Wolgang, and Wolgang’s counterclaim accusing BST of not meeting certain payment obligations.  After considerable arbitration proceedings, a nine-day hearing and several rounds of briefing, the arbitrator awarded equitable and monetary relief.

 

The same day of the arbitrator’s award, BST applied to the Cuyahoga County Common Pleas Court to confirm the award.  The next day, Wolgang filed a petition to vacate or correct the award in the Superior Court of California, County of Los Angeles.  However, Wolgang did not assert that the California case has any bearing on the issues in this case.

 

The trial court scheduled a hearing on the confirmation and Wolgang filed a motion to stay or continue the hearing, arguing it had not received sufficient notice, that its California petition was pending, and that under R.C. 2711.13, it had three months to move to vacate, modify, or correct the award.   At no time before the trial court confirmed the arbitration award did Wolgang move to vacate, modify, or correct the arbitration award in Ohio.  The trial court judge believed regardless of the three-month limitation, Wolgang should have generated a response in some form to the filing of the application to confirm the arbitration award.

 

The trial court confirmed the arbitration award.  Wolgang appealed to the Eighth District Court of Appeals, which concluded that when read together R.C. 2711.09 and R.C. 2711.13 require that a court accord a party intending to vacate, modify, or correct an arbitration award a full three months in which to move.  Therefore, it determined confirmation of the arbitration award in this case was issued prematurely.

 

The Ohio Supreme Court accepted the appeal and reversed the judgment of the Eighth District.  In its discussion, the court stated that even though R.C. 2711.09 requires a court to confirm an arbitration award on an application to confirm that is filed within a year of the award, an opposing party may still move that the award be vacated, modified, or corrected, within three months of the award pursuant to R.C. 2711.13.

 

The court noted that it is important to this analysis that in R.C. 2711.13, the General Assembly specifically addressed the discretionary power of the trial court to stay proceedings in the interest of fairness to both parties.  Accordingly, the court views the limitation period in R.C. 2711.13 as an upper limit that may be shortened by another party’s filing a pleading or motion to which a response is required.  Nothing in R.C. 2711.09 through 2711.13 required the trial court to stay the action or wait for the R.C. 2711.13 three-month period to expire before confirming the award.

 

The court said, in other words, the three-month period set forth in the statute is not a guaranteed time-period in which to file such a motion but is instead the maximum time available to an aggrieved party that wishes to vacate, modify, or correct an arbitration award. When a party to an arbitration applies to confirm the award before the expiration of the three-month period after the award, any party that wishes to oppose confirmation must, within the three-month period, respond with a motion to vacate, modify, or correct the award, on the date of or before the hearing on the application to confirm. Failing to do so may result in the award being confirmed.

 

This decision indicates that if an arbitrator issues an award, it would be best to file the application to confirm the award well within the three-month period.  If another party did not wish that the award be confirmed, it should respond as soon as possible with its motion to vacate, modify, or correct the award, preferably before the date of the hearing on the application to confirm.  The decision further points out the importance of good calendaring systems to enter deadline and response dates to allow ample time to prepare and file responsive pleadings.  The situation in this case occurred over a holiday period.  How the firm will respond during such hectic times should also be anticipated and coordinated.

Important Information for Guardians

Amended Rule Requires Guardians to Report Felony or Misdemeanor Charges

 

Rule 66.05 – Responsibilities of Court Establishing Guardianships, of the Rules of Superintendence for the Courts of Ohio, was amended effective June 1, 2021, to require that each guardian appointed by the probate court execute an affidavit affirming the guardian has no pending misdemeanor or felony charges, has not been convicted of or pleaded guilty to any misdemeanor or felony offense, and shall notify the court within seventy-two (72) hours of any change in the information in the affidavit.  Click for sample Affidavit of Guardian.

 

While the Rules of Superintendence have required criminal background checks of guardians or a Certificate of Good Standing for guardians who are licensed attorneys, neither of these measures discloses current investigations or current pending charges.  These amendments are adopted to provide further protection for the wards.

Court Visitor Program

 

To provide probate courts with more people to help with judicial oversight, the Subcommittee on Adult Guardianships of the Ohio Supreme Court Advisory Committee on Children and Families developed a Toolkit for Judicial Use for Establishing a Court Visitor Program to Monitor Guardianships. This resource is designed to assist courts of any size with developing, implementing, and sustaining a court-monitoring system.  It includes information on how to recruit and train local volunteers to serve as visitors, who can determine whether a ward is having issues and make sure the guardian has information and resources for support services beneficial to the ward.  The toolkit also has potential funding sources and sample documents for a volunteer application and handbook, marketing materials and reports.

Sweeping Changes to Ohio Employment Discrimination Laws

Ohio House Bill 352, the Employment Law Uniformity Act (ELUA), became effective April 12, 2021.  Significantly, the new law reduces the statute of limitations from six years to two years to file a claim for employment discrimination.

 

The ELUA also changes the law which allowed an individual to file a civil lawsuit alleging employment discrimination directly in court, without first having to file a charge with the Ohio Civil Rights Commission (OCRC).  The new law mirrors the federal requirement that the administrative remedies must be exhausted before filing a civil lawsuit.  This means that now an individual must first file a discrimination charge with OCRC.  Be aware of some complicated tolling provisions when filing with OCRC.

 

The ELUA also changes filing for age discrimination claims, providing a single cause of action for age discrimination.  The new law now defines employment discrimination claims as tort claims.  This subjects said claims to the damage caps under Ohio tort law.  There are also new provisions regarding an affirmative defense for hostile work environment and supervisor liability.    See Ohio Legislative Service Commission Final Analysis for details.

 

New Domestic Relations and Juvenile Forms

The Uniform Domestic Relations and Juvenile forms were recently revised to comply with changes to state and federal law.  The revised forms adopted by the Ohio Supreme Court became effective June 1, 2021. The Domestic Relations and Juvenile Standardized Forms are available in Word or PDF.  You may also select another language for the forms.

 

Your local court may have additional forms that must be filed.  Always check to be sure you are filing what is required by your local court.  You may also want to contact your local clerk of courts to verify the currently required forms.  Be sure all your forms are updated and current.

 

Child Welfare Specialization

Attorney specialization is regulated by the Commission on Certification of Attorneys as Specialists to administer Gov. Bar R. XIV – Certification of Attorneys as Specialists.  A proposed amendment to Appendix VI – Fields of Law Subject to Specialization Designation would add “Child Welfare Law” to the fields of law subject to specialization designation.

 

“Child Welfare Law” would be defined as the practice of law representing children, parents, or the government in all child protection proceedings.  The designation would not include representation in private custody and adoption disputes where the state is not a party.

 

The proposed amendments emanate from a proposal by the National Association of Counsel for Children (NACC). Public comments on the proposed amendments will be accepted until August 26, 2021, and should be submitted in writing to:  Alexis Preskar, Attorney Services Counsel, Ohio Supreme Court, 65 S. Front Street – 5th Floor, Columbus, OH 43215-3431 or alexis.preskar@sc.ohio.gov.

 

iCourt Looks to Future for Ohio Courts

The Task Force on Improving Court Operations Using Remote Technology (iCourt) recently released its Report and Recommendations.  The Task Force, created in September 2020 by Ohio Supreme Court Justice Maureen O’Connor, had as its goal to review how courts were using technology during COVID and to issue post-pandemic recommendations to increase efficiency and access to justice.

 

The report noted the use of technology allowed courts to remain open and operate remotely.  However, the report does not recommend that all courts be mandated to use technology to conduct remote hearings, but that judges and courts have the discretion to use when appropriate. The Task Force identified reliable internet access and equipment as ongoing challenges.

 

The overall recommendation of the report is that courts should continue the use of remote technology to conduct court proceedings.  The report includes recommendations that address the operational responsibilities of the court, the courtroom administration of justice, and functions of the clerk of court.  Changes to court rules of procedure and the Ohio Revised Code are also recommended in the report.

 

Reading this report will give you a look into the future of our Ohio courts.  The data collected by the Task Force Survey Subcommittee is comprehensive.  The Best Practices highlighted throughout give valuable insights.