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

We’re pleased to send you this edition of our quarterly Malpractice Alert! 


OBLIC takes pride in delivering superb customer service in all things, with its loss prevention services clearly leading the industry. In addition to weekly posts on topics of value to your firm, we produce a quarterly Malpractice Alert with helpful content.  


Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
Direct:  614 572 0620
Email: [email protected]
Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
Direct:  614.859.2978
Email: [email protected]


This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.


This Summer Edition of our Malpractice Alert features the following timely information to assist you in your daily law practice: 

Understanding Your OBLIC Coverage: Attorneys Serving as Fiduciaries

Attorneys often serve in designated fiduciary roles as executors or administrators of estates and conservators or guardians. These roles often arise from a relationship with a client or in the delivery of legal services. In counties across Ohio, courts appoint attorneys to serve in fiduciary roles.  


Attorneys in these designated fiduciary roles leverage their legal expertise and ethical grounding. Whether serving as guardians, executors, or administrators, their responsibilities to protect the interests of individuals and organizations are defined by a commitment to act in the best interest of those they serve. Principles of loyalty, care, and integrity govern these relationships. This historical and practical integration of attorneys in these roles underscores the broader fiduciary nature of the legal profession, highlighting the trust placed in attorneys in various capacities beyond traditional legal practice.  


The OBLIC LPL Policy anticipates coverage when the fiduciary role arises out of professional services rendered in an attorney-client capacity, noting certain exclusions and exceptions. While all coverage is evaluated at the time a claim is made, attorneys appointed to serve as guardians or administrators are covered for acts, errors, or omissions in that role so long as the claim is not based solely upon alleged error of judgment regarding investments or when the appointed attorney is related to the ward or decedent.  


While these common fiduciary roles typically invoke coverage, claims arising out of standing corporate fiduciary relationships are not. Attorneys serving as trustees or in fiduciary capacities for businesses, nonprofits or charities, investment, pension, and retirement funds, or any entity to which the attorney or a relative of the attorney has a beneficial interest are not covered by the OBLIC LPL policy.  


For more information, review the current OBLIC LPL policy and contact your underwriter. If you require coverage for your fiduciary role not covered by your OBLIC policy, contact the OSBA Insurance Agency.  

Benefit Spotlight: Early Reporting Intervention

Attorneys insured by OBLIC have a duty to report acts, error or omissions that could potentially lead to claims. But don’t wait until the situation escalates! OBLIC Loss Prevention provides assistance to address issues proactively, helping to prevent a situation from spiraling out of control.   


Paragraph XV of your OBLIC policy allows Loss Prevention to provide pre-claim assistance in certain circumstances including: 

  • risk management services, 
  • responding to a subpoena, and 
  • mitigating potential damages.   


With experienced professional support, this assistance may give you peace of mind and, importantly, may prevent a claim from being made. Pre-claim risk management services are not subject to your deductible. This is an extremely important benefit OBLIC offers to give our insured attorneys top-notch service. Don’t hesitate to call us!  



When to Call OBLIC
Duty to Report  

Quarterly practice tip: Medicaid Filing by Fiduciaries

For practicing attorneys, reading and interpreting statutes and administrative rules is part of what we do every day. Still, dealing with Medicaid seems to put up mental roadblocks that keep attorneys from addressing the issues. If the representation involves older adults, individuals with disabilities, individuals with low income, pregnant women, or minors, review the statutes and rules on Medicaid. 


If an attorney is serving as a guardian, including as a court appointed guardian, be sure to timely file a Medicaid application when appropriate.  At OBLIC we are seeing a trend in increased activity by care facilities seeking to surcharge a ward’s guardian for delay or alleged errors in filing Medicaid applications for the ward. Attorneys serving as guardians must be aware of the nursing home’s standing as an interested party when filing the final account.   


If an attorney is handling an estate, be aware that any person responsible for the estate, including an attorney acting as the administrator, must submit a properly completed Notice to Administrator of Medicaid Estate Recovery Program(PDF form) if the decedent was either institutionalized or age 55 or older, not later than 30-days after letters of administration or letters testamentary are granted, or the filing of an application for release from administration or summary release from administration. Best practices are to hold distribution of any estate assets until the time for Medicaid’s recovery claim has passed



Spotting Medicaid Issues, Part I: Ohio Medicaid Estate Recovery
Spotting Medicaid Issues, Part II: Guardians Timely Applying for Medicaid Step by step instructions for selecting a Medicaid Program and the Application/Renewal process  

New Advisory Opinions from the Ohio Board of Professional Conduct and the ABA

Ohio Board of Professional Conduct Opinions 


Ohio Board of Professional Conduct Opinion 2024-03 Propriety of Fee Agreement Permitting Conversion from an Hourly Rate to a Contingent Fee 


This Opinion issued April 5, 2024, addresses whether a lawyer could use a proposed hourly fee agreement until settlement or collection of a judgment, at which time the lawyer could unilaterally opt to convert the fee agreement to contingent. 


In discussing contingent fee agreements permitted pursuant to Prof.Cond.R. 1.5(c), the Opinion observes that contingent fees are normally greater than hourly fees for the same representation as the lawyer bears the risk of no recovery. Any fee a lawyer charges must be reasonable under Prof.Cond.R. 1.5. Section (a) lists eight factors to be considered to determine the reasonableness of a fee. However, a decision of which fee is imposed based on amount of the fee at the conclusion of representation is not one of those factors. This potential fee conversion could interfere with the client’s decision to settle. 


The Board opined that it is improper for a lawyer to enter into a fee agreement with the client agreeing to pay an hourly rate until settlement or recovery when the lawyer can unilaterally decide whether to charge an hourly rate or a contingent fee. 


Ohio Board of Professional Conduct Opinion 2024-04 Fee Mediation or Arbitration Between Departed Lawyer and Former Firm  


The fourth opinion of 2024 was issued on June 7, 2024 and addresses disputes arising between lawyers who are not in the same firm at the outset of representation but enter into a fee agreement to share fees in the representation of a client.  The Syllabus notes that fee disputes between a lawyer who has departed a firm and that lawyer’s former firm are not governed by the R. 1.5(f) mandatory fee arbitration process.  


The Board discussed case law decisions under former DR 2-107(B), noting that neither an Ohio Court nor the Board previously considered this question under Prof. Cond. R. 1.5(f). The Board found that the analysis of the Courts in those decisions supports the Board’s conclusion. Prof. Cond. R. 1.5(f) does not apply to fee disputes between lawyers and their former firms unless the firm, the departed lawyers, and the client enter into a new fee agreement governed by Prof.Cond.R. 1.5(e). 


ABA Opinions 


ABA Formal Opinion 510Avoiding Imputation of Conflicts of Interest When a Law Firm is Adverse to One of its Lawyer’s Prospective Clients 


ABA Formal Opinion 510, issued March 20, offers “general guidance to a lawyer in a law firm to minimize the risk that a meeting with a prospective client will later give rise to an imputed conflict of interest.” The Opinion suggests “reasonable measures” necessary to avoid imputation of conflicts of interest under Prof. Cond. R. 1.18(d) when the lawyer has received disqualifying information from a prospective client. 


The Opinion also offers guidance to determine whether a law firm is disqualified due to its lawyer’s earlier meeting with a prospective client who did not retain that lawyer. It is important to note: the Opinion states that failing to take “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client” is not misconduct. 


The Opinion cautions, however, that if the lawyer learns disqualifying information and has failed to take reasonable measures to avoid receiving more disqualifying information than reasonably necessary for these purposes, and no representation ensues, the lawyer’s conflict will be imputed to the lawyer’s firm. That means not only the lawyer but also other lawyers in the firm will be disqualified from representing a client adverse to the prospective client in the same or a substantially related matter without the prospective client’s informed consent. 


While this ABA Opinion is issued under the American Bar Association’s Model Rules of Professional Conduct, Ohio Rule 1.18 is substantively comparable to Model Rule 1.18. 


ABA Formal Opinion 511 Confidentiality Obligations of Lawyers Posting to Listservs 

Formal Opinion 511 issued on May 8, 2024 reminds attorneys of obligations of confidentiality even when posting “hypothetical” questions on industry list servs for support. Attorneys should not violate Rule 1.6’s duty of confidentiality by asking for guidance about a matter if in doing so the question could reasonably be connected to the identity of the client.  


The Opinion does explicitly recognize that questions of general or broad nature not communicating a particular fact pattern are fair game. “Careful lawyers will often be able to use listservs to ask fellow practitioners for cases and articles on topics, for forms and checklists, and for information on how various jurisdictions address a court-connected concern without enabling other lawyers to identify the lawyer’s client or the situation involved.”  


Keeping in mind that certain dynamics may make the inference of the client easier (e.g., you’re an in-house attorney with only one client, or your matter is so high-profile that the local paper has reported on it), attorneys should use extreme discretion when using listservs. 

CTA Update

On June 10, 2024, FinCEN updated the Beneficial Ownership Information FAQs (Frequently Asked Questions) for CTA (Corporate Transparency Act) reporting requirements and general questions.  


Updates included: 

A.5. How is an Indian Tribe defined under the Corporate Transparency Act?

C.10. Are homeowners associations reporting companies?

C. 11. Are entities formed under Tribal law required to report beneficial ownership information?

D.17. Who should an entity fully or partially owned by an Indian Tribe report as its beneficial owner? 

F.5. What are acceptable forms of identification that will meet the reporting requirement? 

L.8. Are telecommunications services included in the public utility exemptions to the reporting requirements? 


Stay up-to-date! See the FinCEN BOI (Beneficial Ownership Information) website. You can also subscribe to FinCEN Updates. 


NIST 2023 Cybersecurity and Privacy Report

NIST (National Institute of Standards and Technology) issued its 2023 Cybersecurity and Privacy Annual Report in May 2024. The information in the chapter on Human-Centered Cybersecurity includes a Phish Scale, noted as “a revolutionary tool to rate socially engineered email attacks,” which has been adopted by security training in public and private sector organizations in the U.S. and internationally.  

Another excellent resource in this chapter is Users Are Not Stupid: Six Cybersecurity Pitfalls Overturned. This article provides recommendations for the human factor in cybersecurity. The  Users Are Not Stupid can be a good training tool.

Supreme Court of Ohio Writing Manual

Effective June 17, 2024, the Supreme Court of Ohio issued the third edition of the Writing Manual. Revisions and updates are designed to improve the readability of opinions and briefs in the Supreme Court and Ohio Appellate Courts.  


Of interest to practicing attorneys, the Manual of Citations chapter includes Citations at a Glance with examples of the most commonly used citation forms and How to Cite for various types of decisions. The most notable change eliminates parallel case citations, recognizing the facility of Ohio WebCite.  


The Style Guide chapter provides standard guidelines for formal English writing, choosing one alternative where there are multiple options and listing resources for emerging writing styles. Capitalization, use of dates, numbers and punctuation are addressed. Looking over the revised Manual is an excellent review of those legal writing skills you learned in law school. 

Administrative Tasks to Tackle – For Summertime!



Yes – Summer is here! It may be a month for parades, picnics and holiday celebrations with family and friends. Let’s use the time set for office to do that ONE (or more?) case or project that hasn’t been done. Break the procrastinator curse! How to do it: 


Identify the task to be done. Ok – if it’s keeping you awake at night you know what it is! 

If you need help thinking of something to do for this – kudos to you! Choose a task! 


Set aside the time you will need to do it! Put it in your calendar as a scheduled appointment. 


When the date and time arrive – get started – no interruptions! Forward phone calls, turn off email notifications, set a timer (if that helps you!) for an hour and check your progress before proceeding. 


Finish the task. Review and re-work as needed. If another day is required, schedule it as another appointment.  


Now that’s done! Give yourself a high five! Enjoy your accomplishment for awhile! Then look at the next task and get it done! 




It’s still summer! This month – literally give yourself a break! Whether it’s just setting time to enjoy your favorite Ohio park, catch fish at Lake Erie, hike Hocking Hills – clear an hour, an afternoon, a week or more and get out and enjoy! Sorry we can’t name ALL the great Ohio spots – let alone national and international travels.  


How is this an administrative task? Mayo Clinic notes benefits of time away from our screens is beneficial to improve physical health, free up time for fun exploring, make social connections, boost your mood and feel connected to others.   




Fall begins on September 22nd. Use the waning days of summer to look ahead and PLAN! Analyze upcoming case requirements and court dates. Look at scheduling as holidays approach. Coordinate schedules to cover professional commitments. Examine if you are maximizing the efficiency your technology provides. If not, work with your IT experts to get it updated and running before crunch time descends toward the end of the year! 


Happy summer! Don’t forget your sunglasses and sunscreen


Welcome OBLIC CEO John Tribble! 

Ohio Bar Liability Insurance Company (OBLIC) is delighted to announce that John R. Tribble, MBA, CPCU, CCLA has joined the Company as its next President and CEO . Mr. Tribble brings a broad depth of experience in the insurance industry to the Company.

Mr. Tribble has held a variety of positions during the past eight years with Church Mutual Insurance Company. These positions include Vice President-Chief Diversity Officer; Vice President-Agency Operations and Business Development; Vice President Customer Relationship and Business Development; Vice President – Chief Administrative Officer at CM Regent, a subsidiary of Church Mutual; Assistant Vice President-Chief Diversity Officer; Director of Diversity and Inclusion; and Territory Manager, managing a multi-state brokered sales territory.

His accomplishments include establishing a diversity and inclusion program at Church Mutual, resulting in greater customer engagement, expansion into markets driving additional growth and profitability, exceeding combined ratio and premium goals at CM Regent, and increasing the number of agents and the customer base for the Company.

Mr. Tribble has also served in Vice President positions with the Hertz Corporation and Liberty Mutual/America First Insurance Co., and in Associate Vice President and Claim Officer roles at Nationwide Mutual Insurance Co. Mr. Tribble comes to OBLIC after a national search.

With centuries of combined experience serving Ohio attorneys since writing its first policy in 1979, OBLIC’s team is energized to welcome Mr. Tribble and for OBLIC’s next chapter!

John Tribble, OBLIC President and CEO