MALPRACTICE ALERT! WINTER 2022

On October 7, 2022, the Ohio Board of Professional Conduct issued four new advisory opinions and on December 9 issued two more. Four of these opinions involved interpretations of the Ohio Code of Judicial Conduct.

Opinion 2022-08 – Judge Attendance at Exclusive Training for Members of Law Enforcement and Prosecutors

Syllabus: A judge should not attend a training course regarding speed detection devices that is offered by a state law enforcement agency and open exclusively to judicial officers, prosecutors, and members of law enforcement.

Opinion 2022-09 – Magistrate Simultaneously Holding a Nonjudicial Elective Office

Syllabus: A full-time or part-time magistrate may not seek election to, or serve on, a local, city, or state board of education, city council, or county board of commissioners.

Opinion 2022-10 – Magistrate Serving as a Trustee of a Nonprofit Condominium Association

Syllabus: A magistrate may serve as a trustee of a nonprofit condominium association if the extrajudicial activity does not undermine the magistrate’s independence, integrity, or impartiality, lead to frequent disqualification, or interfere with the performance of judicial duties.

This Opinion replaces Opinion 1991-09, which the Board withdrew.

Opinion 2022-12 – Prosecutor Preparation of Judgment Entry

Syllabus: A prosecutor may prepare a judgment entry at the direction of a judge.  A prosecutor should not engage in subsequent communications with a court about changes or edits to a judgment entry that concern substantive matters or issues on the merits unless opposing counsel is included in the communications.

 Opinion 2022-13 – Taking of a Deposition by a Paralegal or Out-of-State Lawyer

Syllabus: A lawyer may not delegate the task of taking or defending a deposition to a paralegal.  An out-of-state lawyer may take or defend a deposition in Ohio so long as he or she meets one of the exceptions contained in Prof.Cond.R. 5.5.  An Ohio lawyer may take or defend a deposition in a state outside Ohio in which the lawyer is licensed to practice law if permitted by that state.

Opinion 502- Communication with a Represented Person by a Pro Se Lawyer

When a lawyer is representing a client, Model Rule 4.2 prohibits the lawyer from communicating about the subject of the representation with a person that the lawyer knows to be represented by another lawyer in the matter. In this opinion the ABA held that the same prohibition applies when the lawyer is only representing himself or herself in a matter.

Opinion 503- “Reply All” in Electronic Communications

The ABA concluded that, “in the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. The receiving counsel’s “reply all” is not an improper communication to a represented party under Model Rule 4.2.

The Supreme Court will accept public comment until January 12, 2023 on proposed amendments to Gov.Bar R. V, Sec. 4 and Gov. Bar R. VI, Secs. 1, 4 and 10 to require private attorneys who do not maintain professional liability insurance to complete a free, online curriculum on the ethical management of a law practice. The rule change proposed by the Office of Disciplinary Counsel would implement proactive management-based regulation. If adopted, the rule change would begin for attorneys registering in 2025 and exempt new attorneys from the curriculum for their first two-year registration cycle.

Public comments should be submitted in writing or via email by Jan. 12 to:
Joseph Caligiuri
Office of Disciplinary Counsel
Supreme Court of Ohio
65 E. State St., Suite 1510
Columbus, OH 43215
[email protected]

Public comment will be accepted by the Ohio Supreme Court until January 12, 2022 on proposed amendments to Appt.Coun.R.1.04, 1.06, 3.01, 3.04 through 3.07, 4.01, 4.05 through 4.09, 5.01 through 5.12 and 6.01 for appointment of counsel in capital cases. The proposed amendments to Appt. Coun. R. 104 clarify that the rules apply to all stages of death penalty cases.

Public comments should be submitted in writing or via email by Jan. 12 to:
Tammy White
Attorney Services Manager
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, OH 43215-3431
[email protected]

The Commission on the Rules of Practice and Procedure in Ohio Courts has proposed amendments to the Rules of Civil, Criminal, and Juvenile Procedure and Rules of Evidence.

The proposal includes some revised versions of the technology amendments recommended by the iCourt Task Force that were previously rejected by the General Assembly. The Commission’s revisions include new definitions relating to physical and remote appearance that specify that courts retain the authority to order a person to physically appear at a proceeding. The proposed amendments regarding remote trials are also more limited than the previous proposal.

Other proposed amendments to the Rules include:

• Revision to Civ.R. 4.1 to set statewide minimum standards for process servers
• Revisions to Civ.R. 4.6 and 73 to allow service in civil and probate matters to be made by USPS ordinary mail if service previously sent by commercial carrier service was unclaimed.
• Revisions to Civ.R. 26, 30, 33, 36 and 37 to:
  • allow courts to adopt a local rule exempting from the meet-and-confer requirement categories of cases in which little or no pretrial discovery is anticipated
  • provide guidance on the proportionality requirement of Civ.R. 26(B)(1) to make clear that the requirement applies to all parts of discovery, including the format of a privilege log
  • clarify the obligations of the serving party and non-party corporate deponent when a subpoena is issued under Civ.R. 30(B)(5)
  • eliminate the need to seek a court order for alternate service of interrogatories and requests for admission when a party does not have means to produce and deliver an electronic copy
  • allow courts to reduce or extend the number of interrogatories permitted based upon motion and for good cause
  • add to those sanctionable offenses failure to confer regarding discovery or an organization deposition and to add contempt of court as a sanction option for failure to provide witness information and failure to confer
• Revision to Civ.R. 65.1 and 75 to exclude certain domestic relations and civil protection order cases from the Civ.R. 41(A) double dismissal rule. Specifically, the amendment states that such a dismissal of a divorce, dissolution, annulment or Civ.R. 65.1 legal petition or  a domestic violence, dating violence, stalking or sexually oriented offence civil protection order under Civ.R. 75 does not  operate as an adjudication on the merits or bar a subsequent filing of the action.
• Revision to Evid.R. 601 to clarify that the active-clinical practice requirement for an expert witness applies at the time the claim accrued, not the time of trial.
• Revision to Juv.R. 27 to clarify when juvenile cases can be heard with and without a jury
• Revision to Juv.R. 34(A) to match recently passed legislation regarding the timing of dispositional hearings in juvenile cases.

These amendments, if adopted by the Ohio Supreme Court and not disapproved by the General Assembly, would become effective July 1, 2023. For more information, refer to the Ohio Supreme Court’s announcement at Court News Ohio.

This fall the OSBA proposed to the Ohio Supreme Court’s Board of Professional Conduct amendments to Rules 7.1 to 7.5 of the Rules of Professional Conduct. These amendments bring the Ohio Rules of Professional Conduct more in line with the ABA Model Rules. Some of the more significant changes in the proposed amendments include:   

• Eliminating “non-verifiable” communications from those communications regarding legal services that are prohibited. Prof.Cond.R. 7.1
• Permitting non-exclusive reciprocal referral arrangements between lawyers and between lawyers and non-lawyers and nominal gifts to referral sources. Compensation for recommendations will still be prohibited. Prof.Cond.R. 7.2
• Eliminating the following requirements:
  • an office address on print advertisements  Prof.Cond.R. 7.2
  • the phrase “advertising material” on solicitations  Prof.Cond.R. 7.3
  • the “understanding your rights” document in solicitations to accident or disaster victims  Prof.Cond.R. 7.3
  • Including among the exceptions to the prohibition on in-person solicitations, those who routinely use, for business purposes, the particular type of legal services offered. Prof.Cond.R. 7.3

The amendments would also eliminate Rules 7.4 and 7.5 by moving selected provisions from those rules into the comment section of amended Rule 7.2.

For more information on these proposed amendments, read “Advocating for Amended Advertising Rules: Ohio Bar Submits Proposal to Supreme Court” from OSBA’s July-September 2022 edition of Ohio Lawyer.

Effective December 1, 2022 the Ohio Supreme Court adopted amendments to Gov.Bar R. VII(7)(D) and XII(2) through (6) that will raise from $300 to $500 the registration fee due from an attorney seeking to appear pro hac vice.

In a busy law practice, loss prevention tasks can slip down the priority list or fall off completely, leaving lawyers at risk. Plan ahead to create a master list of all tasks to be completed and then commit to completing three to five of those tasks every quarter. Here are some tasks to consider tackling this winter:

Email Clean-Up

Emails relating to client matters should not remain in the firm’s email system long term. The emails should be saved in the file folder with the other electronic data for that client matter and then purged from the email system. This protects confidential client communications in case there is a breach of your email system. (See, ABA Opinion 483 – Lawyers’ Obligations After an Electronic Data Breach or Cyberattack)

Completing this task also ensures that the client file will be complete when returned to the client at the end of the representation or if needed to defend against a claim of malpractice or disciplinary grievance. Reducing the size of email accounts is also helpful if your firm receives an e-discovery request in the future as the cost to search these accounts for responsive material is generally based upon the amount of data contained in the account.

Succession Planning

Whether you are a solo practitioner or practice in a firm, succession planning is an important part of fulfilling your ethical obligations to your clients. Check out the Ohio Board of Professional Conduct’s Ohio Ethics Guide on Succession Planning and our thee-part series published last year for tips on how to prepare a succession plan:

• • Business Succession Planning: Mapping Your Road to Retirement
  • Business Succession Planning: Designating a Successor Attorney
  • Business Succession Planning: Protecting IT & Assets

Closed Client Files

Dealing with closed client files at the conclusion of the representation is the best way to avoid having to store and maintain those documents. All firms should have a record retention policy addressing how long to store and maintain closed client files. The client should be informed of the record retention policy in the fee contract and engagement letter and then reminded in the file closing letter.

If the firm’s current record retention policy is for a longer period of time and the firm wishes to adopt a new, shorter file retention policy (such as to give the client the file at the conclusion of representation), clients who were informed of the longer period of time can be notified and given the option to receive their file on the shorter time line or to have the firm maintain it in accordance with the original policy.

Please consult these OBLIC resources regarding file management:

• • Best Practices: Record Retention
  • New Year Closed File Purge
  • The Latest on Client File Retention
  • Malpractice Alert – Dealing With Closed Files

See Suggested Steps to determine disposition of old closed files.

IOLTA Audit

One of the most common problems that lead to lawyer discipline is mishandling client funds. To avoid these problems, it is wise to periodically revisit firm policies and procedures to make sure that the policies comply with Prof.Cond.R. 1.15 and that all lawyers and staff are adhering to those policies. For help in this process, we recommend the following:

• • OBLIC’s IOLTA Spreadsheet
  • IOLTA Reminders & Resources
  • IOLTA FAQs from the Ohio Supreme Court’s Office of Disciplinary Counsel
  • IOLTA Practice Pointers