MALPRACTICE ALERT! WINTER 2020

Whether we lawyers are continuing to work remotely or have returned to the office following current health guidelines, COVID has changed the way we practice. Regular communication with clients remains key. You can use technology such as Microsoft Teams, Zoom, Skype, or other common video chat services to communicate virtually.

This is also a good time to review and update various internal policies and procedures, especially those related to communication, including use of engagement letters, retainers, billing and document retention. See samples available on our website!

OBLICAlert of April 3, 2020 provides additional practice tips.

Practicing with COVID restrictions raises several ethical considerations and provides opportunities for Best Practices to follow.

Rule 1.1 Competence

Rule requires that a lawyer shall provide competent representation – which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See OBLICAlert May 29, 2020.

Best Practices:

• Don’t dabble – consider co-counsel or referral to competent counsel
• Stay up to date on technology for your firm
• Implement cyber security measures

Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Consider the impact of COVID – Virtual hearings, hybrid hearings, in-court hearings.

See:

• Strategies for Addressing a Backlog of Hearings Tips for Ohio Courts (8/27/20)
• Further Jury Trial Tolling Deemed ‘Case-by-Case’ Ohio Supreme Court Chief Justice Maureen O’Connor October 30, 2020
• Ohio Supreme Court Task Force on Improving Court Operations Using Remote    Technology – iCOURT Survey – to find out how remote technology is being used throughout the state.
• Court System COVID-19 Playbook (11/24/20)
• HHS/CDC Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19: Frequently Asked Questions (11/3/20)
• Comment [5] indicates succession planning may be required to prevent neglect of client matters.

While this is a good idea at any stage of a lawyer’s practice, it is of paramount importance during the pandemic. Consider implementing a succession plan, if you don’t already have one in place. See Ohio Ethics Guide Succession Planning.

Best Practices:

• Stay informed of scheduling in courts where you practice
• Use technology to move representation forward
• Have a business continuity plan in place in the event lawyer(s)/staff are incapacitated

Rule 1.4 Communication

A lawyer shall promptly inform the client of any decision or circumstance requiring the client’s informed consent, reasonably consult with the client about the means to accomplish the client’s objectives, keep the client reasonably informed about the status of the matter, comply as soon as practicable with reasonable requests for information from the client.

It’s best to put client communications in writing. See Malpractice Alert Summer 2020,

Monthly Status Letter (and other client communication letters) and File Closing Letter.

See also Client Communication series June 19, 2020 and November 9, 2020

Best Practices:

• Use effective calendaring and client communication
• Update internal lists for passwords, client files, calendar and statute dates
• Be pro-active with client communication – let them know you’re prepared!
• Especially when clients may be feeling isolated, detached or disrupted
• A personal telephone call, short video chat, or email to let them know you’re there for them and can open the door to more meaningful, business-related conversations where appropriate
• Use remote conferencing to meet with clients, especially those who may have health risks (Microsoft Teams, Zoom, Skype, or other video services)
• Keep clients informed on status of representation and updated on scheduled or impending deadlines, including any COVID-related court delays
• Be sure client communications comply with cyber security measures

Rule 1.6 Confidentiality of Information

Rule requires a lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to information related to the representation of a client.

See ABA Formal Opinion 477R Securing Communication of Protected Client Information. The Opinion recommends seven steps lawyers should take to prevent disclosure:

Best Practices:

• Take appropriate measures to protect confidential electronic communications
• Avoid using public internet/free Wi-Fi
• Use Virtual Private Networks (VPNs) to Enhance security
• Use two-factor or Multi-factor authentication
• Use strong passwords to protect your data and devices
• Assure that video conferences are secure
• Backup any data stored remotely
• Security is essential for remote locations and devices
• Users should verify that websites have enhanced security
• Lawyers should be cognizant of their obligations to act with civility
• See Formal Opinion 2020-300 Pennsylvania Bar Association Ethical Obligations for Lawyers Working Remotely and On Lawyer Communication

Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers and Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

These rules require that lawyers with managerial authority make reasonable efforts to have measures in place giving reasonable assurance of ethical conduct. Working remotely may present challenges for supervisory functions.

Best Practices:

• Develop and implement policies and procedures for attorney and staff supervision
• Consider virtual staff meetings
• Regularly use checklists
• Schedule staff meetings to allow for participation and questions
• Use shared digital calendars to keep track of people and dates
• Train lawyers and staff on cyber security

By now, it seems we are stating the VERY obvious warning not to fall for these scams! OBLIC has repeatedly warned about these check scams.

See the OBLICAlerts:

• Check Scammers DO Get Caught January 9, 2020
• Check Scams on the Rise, Again January 10, 2020
• Avoiding Check Scams January 17, 2020
• New Check Scam Alert! April 16, 2020.
• Check Scams a Serious Problem for Ohio Attorneys and Law firms! October 12, 2020

We urge you once again, please watch our for the Red Flags. Click here or a sample letter to use with the bank before wiring funds received via cashier’s check or other instrument. Follow all the steps in the checklist to avoid this scam and verify the funds are in your account. Remember – the bottom line is YOU WILL OWE THE AMOUNT OF THE FUNDS TRANSFERRED IN EXCESS OF ANY “CLIENT FUNDS” IN YOUR IOLTA!

COVID-19 has definitely raised the bar for law firm cyber security. As practicing lawyers work remotely, attend court hearings and meet with clients virtually, and with a significant spike in cyber-attacks since the beginning of this pandemic, the need to have appropriate safeguards to protect client confidential data is of extreme importance. See OBLICAlert October 9, 2020.

The U.S. Department of Homeland Security Cybersecurity and Infrastructure Security Agency (CISA) issued an Alert on cybercriminal threats during COVID. See CISA Alert COVID-19 Exploited by Malicious Cyber Actors for top tips for spotting phishing emails.

Avoid scams with email:

• Do not open or respond to any emails or email senders you do not recognize or that look odd or suspicious.
• When in doubt, contact sender directly by another form of communication e.g. phone
• Do not open or click on any email attachments from senders you do not trust or recognize, especially if the email is related to COVID-19.
• Train all lawyers and staff to “ask before you click,” if in doubt

OBLIC’s Cyber Toolbox has resources for you! See OBLICAlert of June 8, 2020.

The OBLIC Cyber Toolbox can help you get started protecting your firm from a cyber breach and mitigating any potential loss. Additionally, your OBLIC policy provides basic cyber security insurance protection, with additional limits and coverages offered through its subsidiary, the OSBA Insurance Agency. See OBLICAlert of July 3, 2020.

Also be aware of new scams for COVID-19 vaccine scams. See Alert from U.S. Gov Financial Crimes Enforcement Network FinCEN Asks Financial Institutions to Stay Alert to COVID-19 Vaccine-Related Scams and Cyberattacks

The annual review of the Rules of Civil Procedure and other rules of court by the Supreme Court Commission on the Rules of Practice and Procedure led to significant amendments to the Ohio Rules of Civil Procedure, which took effect on July 1, 2020. Key amendments to the Ohio Civil Rules of Civil Procedure were made to:

• Rule 4.7 (NEW rule) Waiver of Service
• Rule 16 (NEW rule) Pretrial Conferences, Final Pretrial Conferences and Scheduling Orders
• Rule 26 (Amended) Initial Disclosures of Information, Disclosures of Expert Testimony
• Rule 26 (Amended) Discovery Generally and Electronically Stored Information (ESI)
• Rule 53 (Amended) Jury Trials before a Magistrate

Practice Pointer: The newly effective amendments present changes and challenges for Ohio attorneys. Attorneys should note many changes to time periods applicable to case scheduling, motion and discovery deadlines. It will be a good idea to build these into your case calendaring system.

Remember, the amendments apply to all pending actions as well as cases filed on or after July 1, 2020. This review should also include the intersection of these amendments with your local rules of court. See OBLICAlert July 31, 2020 for discussion of this topic.

The Ohio Supreme Court adopted amendments to Rules 40-48.07 of the Rules of Superintendence for the Courts of Ohio for guardians ad litem (GAL). The rules apply for all domestic relations and juvenile cases when courts of common pleas appoint a GAL for children. See Malpractice Alert Fall 2020.

Also note that on December 16, 2020, the Ohio Supreme Court issued a Court Order, In re Waiver of Physical Presence Requirement for Guardian-Ad-Litem Education Courses and Encouraging Remote Participation in Judicial College Education Courses, that provisions of Sup.R. 48.04(B)(2) that require guardians ad litem to be physically present for preservice and continuing education courses shall be waived, and guardians ad litem may satisfy these requirements by remotely participating in these courses.

Opinion 2020-11 Trade Name Used as Law Firm Name, issued October 2,2020, discusses whether a lawyer or law firm is permitted to practice under a trade name that is not connected to the lawyer’s name or his/her legal services. The opinion states that Rule 7.5 was amended effective June 17, 2020 to remove the prohibition against the use of a trade name as a firm name by a lawyer or lawyers. See OBLICAlert October 16, 2020.

OPINION 2020-01 Covenant Not to Compete Offered to In-house Counsel

SYLLABUS: An in-house lawyer may not agree to an employment contract with a covenant not to compete that would restrict the lawyer’s right to practice after separation of employment.

OPINION 2020-02 Preparation of Deed Upon Direction of Real Estate Agent

SYLLABUS: A lawyer should not draft a deed at the direction of his or her client’s real estate agent that is different than the deed required by an executed contract, without the client’s consent, if the new deed will affect the ultimate resolution of the matter or the substantive rights of the client. When interacting with an unrepresented party in a real estate transaction, a lawyer must identify himself or herself as the lawyer for either the buyer or seller, refrain from giving the unrepresented party any legal advice, and may only advise the unrepresented party to secure independent legal counsel.

OPINION 2020-03 7 Duty of Disclosure of Prospective Client’s Fraudulent Conduct

SYLLABUS: A lawyer should not agree to represent a prospective client who has provided fabricated records to an administrative agency, unless the client agrees to correct the materially false information. If after the lawyer undertakes the representation the client fails to correct the materially false information within a reasonable time, the lawyer must withdraw from representation to avoid assisting the client in an illegal or fraudulent act. If the client places the lawyer in a position where withdrawal is not sufficient to avoid assisting the client in an illegal or fraudulent act, the lawyer must disclose the material facts to the administrative agency. A lawyer who declines to undertake the representation of a prospective client who has provided fabricated records to an administrative agency has no obligation to, and in most circumstances must not, notify the agency of the fabricated records.

OPINION 2020-04 Concurrent Representation of Clients With Disparate Interests Involving the Same Matter

SYLLABUS: A law firm must withdraw from the concurrent representation of multiple clients or seek their informed, written consent when the clients’ disparate interests as to the outcome of the same matter materially interferes with the firm’s lawyers’ independent professional judgment in representing either client.

OPINION 2020-05 Law Director Acting as an Advocate in a Trial in Which Another Lawyer in the Same Office is a Witness

SYLLABUS: A law director or assistant law director may act as an advocate in a trial in which another lawyer in the office will testify as a witness only when the testimony is permitted by common law, if the disqualification of the advocate would work a substantial hardship on the city, or when the testimony relates to an uncontested issue or the nature and value of legal services.

OPINION 2020-06 Lawyer Departing Law Firm

SYLLABUS: A law firm and a lawyer leaving the firm have an ethical obligation to ensure that affected clients are informed of the lawyer’s departure. A law firm and departing lawyer may jointly or separately notify affected clients of the lawyer’s departure from the law firm. The notice may indicate the availability and willingness of the lawyer or law firm to continue to provide legal services to the client. A lawyer and the law firm must accept a client’s choice of counsel prompted by the departure of a lawyer from the firm. A law firm cannot prevent a departing lawyer from notifying affected clients for whom he or she has principal responsibility.

OPINION 2020-07 Modifies Adv. Op. 96-3 Use of Surname of Retiring or Inactive Lawyer in Law Firm Name and Letterhead

SYLLABUS: A law firm may continue to include in the firm name, in a continuing line of succession, the surname of a retiring lawyer granted retired or inactive registration status by the Supreme Court. A law firm may continue to list on its letterhead the name of a lawyer registered with the Supreme Court as “retired” or “inactive” if the name of the lawyer is designated with his or her registration status. A lawyer retiring from a law firm, and maintaining an “active” registration status, may become “of counsel” to the firm as long as the lawyer maintains a continuing and close, regular, personal relationship with the firm. A lawyer granted “retired” or “inactive” registration status may not serve as “of counsel” with any law firm. A law firm may continue to include in its firm name, the surname of lawyer who has retired from the firm and later becomes “of counsel” to the firm.

OPINION 2020-08 Providing Financial Planning Services and Products Through a Law Firm

SYLLABUS: A lawyer may provide financial planning services through a law firm on a fixed fee, flat or hourly, basis. When a lawyer provides financial planning services through a law firm in connection with legal services, all services provided by the firm are subject to the Rules of Professional Conduct. A lawyer may not charge a fee for financial planning services provided through a law firm based on a percentage of the assets managed for a client. A lawyer may not sell financial products, such as annuities, through the law firm to estate planning and business clients. Client consent cannot ameliorate the conflicts present when a lawyer provides financial planning services through a law firm based on a percentage of assets managed basis or when a lawyer sells financial products to clients.

OPINION 2020-09 Payment of an Annual Fee to a Real Estate Agency for Participation in Benefits Program

SYLLABUS: A law firm may not enter a business agreement to pay an annual fee to a real estate agency and offer discounted legal services to customers of the real estate agency in exchange for the real estate agency promoting the law firm as a service provider in a real estate benefits program.

OPINION 2020-10 Law Firm Concurrent Representation of Adverse Clients in the Same Transaction

SYLLABUS: A conflict of interest arises from a lawyer’s concurrent representation of directly adverse clients in the same transaction. A law firm cannot avoid the imputation of a conflict of interest arising from the concurrent representation of two clients in the same transaction by screening separate lawyers assigned to each client.

OPINION 2020-12 Lawyer or Law Firm Use of Service Mark

SYLLABUS: A lawyer or law firm may register and use a service mark in communications and advertising. A service mark used by a lawyer or law firm cannot be false, misleading, or nonverifiable. A service mark that implies certain results, expediency, or a connection to a governmental, nonprofit, or charitable organization is inherently false or misleading. A lawyer may not use the terms “pros” or “pro” in a registered service mark regardless of whether the lawyer has been certified as a specialist in an area of law. A lawyer or law firm may register and use a service mark to convey a limitation or concentration in a particular field of law. A lawyer or law firm may only use a service mark in written or oral communications in conjunction with the formal legal name of the law firm.