MALPRACTICE ALERT! SUMMER 2023

Recently, policyholders have shared with us emails they have identified as scams. New levels of sophistication from scammers could fool even the most diligent attorney, so we highlight one recent example in this Malpractice Alert:

A scammer sent an initial “phishing” email purporting to be from an attorney across the country. (If you looked up the name, you would find a licensed attorney by that name.) After responding to the initial phishing email, the scammer then emailed using the name of a genuine business. After a little examination, however, the contact information in the signature block of the email did not match the contact information on the company’s actual website. (In even more nefarious schemes, the scammer built a fraudulent website for the fake company.)  Fortunately the insured attorney’s careful attention to details helped avoid falling victim to this scam.

While you can and should take steps to try to prevent becoming a victim of cybercrime, a criminal act may affect even the most vigilant firm. As an OBLIC legal professional liability policyholder, you are provided with a limited Cyber Liability Endorsement by Tokio Marine Houston General Casualty Company. The e-JD® Cyber Liability coverage endorsement covers loss or liability in a wide spectrum of scenarios. Not just limited to losses due to ransomware or hacking attacks, the e-JD® Cyber Liability endorsement also provides limited coverage for:

• Non-compliance with PCI or payment card company security standards or rules
• Alleged violations of the Telephone Consumer Protection Act or related laws regulating the use of telephonic or electronic communications for solicitation purposes
• Loss of profit due to an adverse media report or notification of a security or privacy breach
• Liability resulting from disseminating media material that infringes on copyright/trademark
• Losses due to cybercrime including financial fraud or phishing

Fortunately, OBLIC provides limited cyber breach coverage for your firm, with optional broader coverages tailored to the size, type of practice or scope of cyber security protection needed. To learn more about cybersecurity and get started on updating your firm’s cyber security policies, check out OBLIC’s Cyber Toolbox, a resource exclusively for our policyholders, and the National Institute of Standards and Technology’s Small Business Cybersecurity Corner. If you are interested in applying for new or additional cybersecurity coverage, contact Danna Blackburn, Senior Insurance Agency Sales Executive at (614) 572-0616 and [email protected].

The Ohio Board of Professional Conduct announced four new Advisory Opinions on June 9, 2023:

• Adv. Op. 2023-03: Application of Code of Judicial Conduct to Mayor’s Court Magistrates
• Adv. Op. 2023-04: Compliance with Subpoena Duces Tecum for Former Client’s File
• Adv. Op, 2023-05: Appearance of a Lawyer Affiliated with the Law Firm of a Judge’s Spouse
• Adv. Op. 2023-06: CSEA Staff Attorney’s Prior Service as a CSEA Administrative Hearing Officer

We will summarize the Opinions in a future OBLIC Alert.

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.

The American Bar Association Standing Committee on Ethics and Professional Responsibility has released two recent Formal Opinions.

Formal Opinion 504: Choice of Law addresses which rules of professional conduct control for attorneys licensed in multiple jurisdictions. The Opinion is issued under Model Rule 8.5 Disciplinary Authority; Choice of Law, which is substantively identical to Ohio Prof. Cond. R 8.5. This Opinion is an important read for firms with lawyers licensed in or authorized to practice in more than one jurisdiction.

Five scenarios are presented in the Opinion to discuss the application of Rule 8.5 to determine which disciplinary rules govern a lawyer’s conduct:

• Fee Agreements
• Law Firm Ownership
• Reporting Professional Misconduct
• Confidentiality Duties
• Screening for Laterals Lawyers

The scenarios demonstrate the complexity of analysis required in each situation.

The Opinion concludes that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed and conduct not involving litigation, a lawyer must comply with the ethics rules of the jurisdiction where the lawyer’s conduct occurs or, if different, where the predominant effect of the lawyer’s conduct occurs. A lawyer will not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

We are happy to discuss these situations as they occur in your practice and provide our OBLIC policyholders ethics consults to address fact-specific issues.

Formal Opinion 505: Fees Paid in Advance for Contemplated Services, issued under the Model Rules of Professional Conduct, finds that Model Prof. Cond. Rule 1.15 requires that fees paid in advance must be held in a trust account and may be withdrawn only when the services for which the fees are paid are actually rendered. The Opinion also reminds attorneys that all fees must be reasonable and unearned fees must be returned to the client. According to this ABA Opinion, it is not accurate to label a fee as “nonrefundable” before it is actually earned and labeling a fee “earned on receipt” does not accurately determine whether a fee has actually been earned.

The Ohio Rules of Professional Conduct differ from the Model Rules. The Ohio Rules include Prof. Cond. R. 1.5(d)(3) and Comment [6A]. Ohio lawyers must read ABA Opinion 505 in conjunction with Ohio Board of Professional Conduct Opinion 2016-1 Flat Fee Agreements Paid in Advance of Representation, issued under Ohio Rules of Professional Conduct.

Opinion 2016-1 stated that flat fee agreements must comport with the Ohio Rules of Professional Conduct. Like ABA Opinion 505, Opinion 2016-1 states that under Prof.Cond.R. 1.15(c), a lawyer is required to deposit flat fees and expenses paid in advance for representation into an IOLTA account and may withdraw the fee only as it is earned or the expense as it is incurred.

However, Opinion 2016-1 states that an “earned upon receipt” fee is a flat fee paid in advance that is deemed earned upon payment regardless of the amount of future work performed, thus permitting the flat fee to be deposited into an operating account. If a lawyer designates a fee “earned upon receipt,” “nonrefundable,” or similarly, however, the attorney must advise the client in writing that the client may be entitled to a refund under Ohio Prof. Cond. R. 1.16(e) if the work anticipated for the flat fee is not completed. Under Ohio Prof. Cond. R. 1.5(a), the flat fee must not be excessive.

These Opinions convey the importance of clearly defining the fee the lawyer will charge the client, how and when it will be billed, and that if for any reason the representation is not completed, the client may be entitled to a refund of any unearned portion of the fee paid in advance. See also OBLICAlert New ABA Formal Opinion 505 on Fees Paid in Advance Contracts with 2016 Ohio Advisory Opinion.

A court in Massachusetts has refused to grant summary judgment in a legal malpractice case against a large east coast law firm. The firm has been sued by a former client who alleges that a “botched cut-and-paste” error allowed a former business partner to transfer a key asset out of jointly held funds and into another separately held entity. The former client alleges that it was a lawyer “drafting error” that permitted the transfer, argued to be worth around $636 million. The firm, however, argues that the transfer violated the terms of the contract, and as such it was the bad actions of the business partner and not the drafting error that caused the damages. The firm’s Memorandum in Support of their Motion for Summary Judgment posits that, “Each of [bad acting business partner’s] breaches severs the chain of causation between [firm’s] alleged conduct and [client’s] injury.” In making this argument, the firm attempts to negate two of the four required elements in a legal malpractice case: 1) that there was no breach of the firm’s duty to the client, and 2) that there is no causal connection between the alleged error and the damages incurred.

Even still, the suit is a good reminder of the necessity to review each clause of a contract with a keen eye and discussion with the client. Attorneys are wise to ensure mutual understanding between the client and counsel by documenting intent, agreement, and any revisions to contract clauses. Allowing adequate time to think through vulnerabilities in a contract that could be exploited to your client’s detriment, and then drafting to prevent such exploitation is strongly recommended.  Doing so can help avoid taking the heat for others’ bad actions.

Earlier this spring, the Ohio Supreme Court released new victim’s rights and restitution forms (eff. April 6, 2023). These forms are intended to help implement the statute adopted by H.B. 343 codifying the Ohio constitutional amendment known as “Marsy’s Law.”

According to Court News Ohio, the new Crime Victim Rights form packet performs “three essential tasks:”

• informing people who have been victims of crime of their rights and distinguishing between which of those rights are automatic and which must be affirmatively asserted;
• allowing the individual to elect which rights to exercise and to designate a representative; and
• collecting the individual’s contact information so that law enforcement, prosecutors, courts, and correctional facilities can follow up with the individual.

The second form (Crime Victim Restitution Amount Summary Form) is a worksheet to assist a crime victim or the estate of a crime victim to gather information necessary to seek restitution. It explains what restitution is and how to seek restitution during a criminal matter.

The Ohio Supreme Court notes that additional resources available from the Ohio Attorney General’s office and the Ohio Crime Victim Justice Center.

Reviewing and updating intake forms and initial client on-boarding processes are our recommended administrative tasks for the next three months. Here are some suggested tasks that should take you 30 minutes or less each:

July   Review your intake script with your staff or outside service who first interact with prospective clients, by phone or in person. While many clients find attorneys online, phone calls are still an important first step in the intake process. This suggested script should allow your staff to capture necessary information to screen for conflicts before an intake appointment or consultation is scheduled. Ideally, performing a conflict check should occur before substantive information is shared by the prospective client with your staff. Empower your staff to meet your expectations, which can save you time and ensure your firm is following best practices!

August   Review and update your template fee agreements for your firm. Ensure that your firm includes provisions on aspects that are sometimes overlooked:

• Billing time increments: If you’re billing hourly, ensure clarity in your fee agreement on time increments. If you bill in anything over 0.1 hr increments, ensure that the minimum billing increment is disclosed in writing.
• Costs for non-attorney staff, office or travel expenses, and litigation expenses.
• Retainer replenishment: Getting clear with your clients in the free agreement regarding your policies around retainer replenishment can help set expectations early.
• File return & retention policy: Update your template fee agreement to reflect your firm’s current file return and retention policy.

September   OBLIC encourages our policyholders to use written engagement letters in addition to your fee agreements. Engagement letters are great tools to have ready and use to ensure clarity on scope of representation. Using a separate engagement letter can assist with expanding (or contracting) scope of representation without having to execute a new fee agreement. A template engagement letter can be found in the desktop reference guide, OfficeKeeper, which is available to Ohio Bar members through the Member Tools & Benefits tab.

OBLIC Loss Prevention attorneys are happy to assist with questions about these suggested tasks and templates.

Ohio Supreme Court Chief Justice Sharon L. Kennedy recently addressed three of her top priorities: resolving old cases, helping persons reentering from jail or prison, and getting veterans needed services. The Chief Justice related hearing about backlogged cases across Ohio and noted the Supreme Court is increasing and enhancing services to help local courts. The Chief Justice encouraged attorneys to use “Settlement Week” to work to bring cases to conclusion.

A statewide Reentry Task Force announced by the Chief Justice has been asked to analyze the needs, services, and practices between courts and the reentry population; identify best practices for reentry with a holistic approach to improve outcomes; and examine local jail release efforts. The multidisciplinary task force representing state and local agencies, judges, law enforcement, and community health and rehabilitation partners, chaired by Stark County Common Pleas Judge Chryssa Hartnett, held its first meeting on May 18, 2023.  See Reentry Task Force for more information.