MALPRACTICE ALERT! WINTER 2024

Your OBLIC Professional Liability Claims-Made and Report Policy provides robust coverage for professional services in a lawyer-client capacity, while volunteering or providing pro bono representation, or serving in various legal professional roles such as a mediator, lobbyist, or hearing officer. However, it’s also important to be aware of circumstances where the policy does not apply. The OBLIC Legal Professional Liability policy identifies various types of exclusions and exceptions to coverage. 

1. Prior Acts: Acts, errors, or omissions leading to a claim that took place before a Named Insured’s Prior Acts date stated on the Exclusion of Prior Acts Endorsement are excluded from coverage. 

2. Unreported Claims: Claims that are not first reported during the policy period in which the insured attorney learned about the claim may be denied coverage. 

3. Licensed Professional Services: Attorneys who are also non-legal professional licensees such as real estate brokers, financial advisors, or CPAs are not covered for claims arising from services rendered in those capacities.  

4. Investment Advice: Claims based solely upon the exercise of Investment Judgment are not covered. 

5. Organizational Fiduciary: OBLIC’s LPL policy does not cover claims arising from a situation where the insured attorney serves or acts in any fiduciary capacity for any business or organization, any employee or group investment fund or trust. 

6. Intentional and Criminal Acts: Criminal, dishonest, or fraudulent, or willful, intentional, or malicious acts or failures to act, giving rise to a claim can result in the denial of coverage. 

7. Employer Claims: Claims made by an employer against an insured attorney who is or was a “salaried employee” of the employer are not subject to coverage. 

8. Personal Injury Claims: While rare, the OBLIC LPL policy would not provide coverage for claims arising out of bodily injury, sickness, disease, death; destruction or theft of property. 

9. Personal loss as beneficiary: Any loss sustained by insured attorneys as a beneficiary or distributee of a trust or estate themselves is not covered. 

10. Director and Owner Claims: If an insured attorney is sued in or arising from their role as an officer, director, partner, member, owner, employee or in a fiduciary capacity of any business or organization, the LPL policy would not apply.  

11. Fee Disputes: Claims for money damages for return of monies or any other consideration provided to an Insured as fees or expenses, or for an offset to fees and expenses paid to or allegedly owed to any Insured,  including consequential damages and attorneys’ fees arising out of Insured’s alleged failure to return or reimburse such fees or expenses are not subject to coverage.  

In summary, understanding the exclusions in your OBLIC Legal Professional Liability policy is crucial to ensuring comprehensive protection in your legal practice. By recognizing the specific circumstances that are not covered—such as prior acts, unreported claims, non-legal professional services, and intentional misconduct—along with the outlined roles and actions like organizational fiduciary and investment advice, you can better navigate potential liabilities. Staying informed about these exclusions helps in maintaining diligent practice standards and safeguarding against uncovered risks. 

Your OBLIC Policy includes defense cost reimbursement for disciplinary actions. To take advantage of this benefit under an OBLIC professional liability policy, policyholders must report the letter of inquiry or notice of grievance promptly upon receipt.  

The benefit provides reimbursement for legal fees and expenses for hiring an attorney to assist with defending against professional misconduct complaints. It provides up to $5,000 for responding to a letter of inquiry, and up to an additional $15,000 if a formal complaint is made.  No deductible applies to this coverage. 

For this coverage to apply, (1) the insured attorney must report the grievance during the same policy period in which the attorney learned of the grievance, (2) the conduct that gave rise to the grievance must have occurred during a time in which the lawyer had legal malpractice insurance in effect, and (3) the alleged conduct must have arisen from “Professional Services” to others.   

To report a grievance and request coverage, send a written request for coverage with copies of the Letter of Inquiry or Certified Complaint by fax to (614)488-7936 or email [email protected].  

For further details, see XIV. Limited Legal Fee and Expense Coverage for Disciplinary Actions in your OBLIC Professional Liability Claims Made and Reported Policy.   

On December 13, 2024, the Ohio Board of Professional Conduct issued two new Advisory Opinions. Both of these address judicial recusal. Note Opinion 2024-06 regarding lawyers in the same law firm or public office as a lawyer who is representing a judge. 

OPINION 2024-06 Judicial Disqualification When Counsel for Party Represents Judge in Other Matter This opinion withdraws Adv. Op. 1989-34. The Opinion states that absent a waiver by the parties, a judge must recuse himself or herself from cases in which a party is represented by a lawyer who is concurrently representing the judge in another matter. The duty to disqualify does not extend to other lawyers in the same law firm or public office as the lawyer who is representing the judge. 

OPINION 2024-07 Disqualification When Judicial Campaign Opponent Appears Before Judge This Opinion withdraws Adv. Op. 1987-023. The Opinion finds that is not required to recuse from a matter in which the judge’s campaign opponent represents a party before the judge unless the judge’s impartiality may be reasonably questioned. 

A claim trend is emerging for attorneys in guardianships for elderly persons entering care facilities. If the attorney does not timely submit the Medicaid application, coverage may be delayed or denied. When payment from Medicaid is not available, care facilities are seeking recovery from the attorney. 

Attorneys who undertake representation of persons who may need to enter a care facility, should familiarize themselves with the Ohio Medicaid Application process. The Ohio Department of Medicaid website provides step by step guidance on How to Apply or Renew for Medicaid, with additional links for local Job and Family Services offices and an online application. This is definitely an area to follow the advice “Don’t Dabble!” If you are heading into unfamiliar territory, consider contacting an Ohio Bar Elder Law Certified Specialist.  

Introduction 

Last winter, we rolled out a series of Malpractice Alert articles covering the basics of the elements of a cause of action for legal malpractice. With the goal of helping attorneys understand the elements of this civil tort, this series has covered the four elements: Duty, Breach, Proximate Cause and Damages, and the basics of the Statutes of Limitations and Repose under R.C. 2305.117(A) and (B). The series aims to put best practice guidance into context of preventing and defending against legal malpractice claims.  

Elements and their Application 

Duty 

With the presence of duty as the backbone of establishing liability, it is critical to ensure clarity in the presence and scope of the attorney-client relationship. Duty exists when the client has a reasonable belief that they are represented by an attorney for a particular matter. An attorney can limit duty to a client by documenting the presence – or lack thereof – of representation. However, attorneys should exercise caution – conduct that suggests representation can undermine a written statement of scope or even declination of representation. Once a relationship has been established, it’s likely that the first element has been met. 

Breach of Standard of Care 

Evaluating a breach of the standard of care also includes the concept of reasonableness. Would the act or failure to act have been considered reasonable by similarly situated attorneys? While proving that a lawyer failed to use a degree of care, skill and diligence reasonably used by similarly situated attorneys often requires the use of an expert, some breaches such as missed filing deadlines are evident on their face. 

Proximate Cause 

In a claim of professional malpractice, the plaintiff has the burden to demonstrate that the attorney’s error clearly and directly caused the damages claimed. More often than not, the plaintiff must prove the case-within-a-case. This doctrine requires the plaintiff to prove that they “would have been successful in the underlying matter.”  

Damages 

After demonstrating that the case would have been successful but for the attorney’s error, the plaintiff must then prove that the damages sought would have been actually awarded AND recovered. Damages themselves must be quantified and proven. Managing a client’s expectations about the outcome and value of their case can assist with resolving a subsequent malpractice claim. If they are led to believe that their case was a high-value slam dunk, they may be more likely to assert that litigation judgment or trivial error caused loss.   

Statutes of Limitations and Repose 

With the one-year Statute of Limitations and the newer four-year Statute of Repose, timely providing information and documenting the conclusion of a matter are in an attorney’s interests. (For more on the Statutes, see the article in the Fall 2024 Malpractice Alert.) 

Proven Prevention Tips 

From four decades of defending attorneys and handling claims of alleged malpractice, we know what helps prevent claims:  

• Clear Engagement Letters and Fee Agreements to establish duty and scope of representation.  

• Strong Client Communication that promotes collaboration, fact-checking, and attention to the matter 

• Diligent Documentation that documents meeting the standard of care with good analysis and investigation. 

• Conflict Checking to prevent breach of duty associated with divided loyalties. 

• Redundant and Oversight of Calendaring with filing ahead of deadlines to prevent missed filing dates. 

All OBLIC policyholders can take advantage of our Loss Prevention Hotline, robust practice management and ethics resources, and complimentary ethics consultations. These industry-leading tools are here to prevent malpractice claims and grievances.  

Conclusion 

Understanding the elements of legal malpractice is not just an academic exercise—it’s a critical tool for attorneys aiming to safeguard their practice and uphold their professional duties. By recognizing how duty, breach, causation, and damages interconnect, lawyers can better identify vulnerabilities in their workflows and adopt measures that enhance client satisfaction, reduce risks, and reinforce ethical decision-making. 

During this lame duck session of the 135th General Assembly, the Ohio House and Senate are considering legislation impacting a number of practice areas including family law, public employment law, and education. The following legislative items are noteworthy due to significant year-end activity and are likely to be, or already have been, sent to Governor DeWine for signature. Note that due to editorial deadlines, items discussed below may have had further action by the date of publication.  

The Ohio Bar advocates on behalf of lawyers and the profession as it monitors and weighs-in on legislation that affects practice and access to justice. Don’t miss out on important legislation by following Ohio Bar Practice Area Updates and Legislative Priorities. Stay up-to-date with Ohio Bar Weekly Legislative Reports. The latest report, which includes additional bills and greater detail than below, can be found here.  

House Bill 5 – Modernizing adoption laws 

Supported by judges and adoption professionals, House Bill 5 was sent to Governor DeWine for signature early in December. Upon enactment, according to the Ohio Capital Journal, House Bill 5 creates greater consistency in adoptions across Ohio counties, clarifies that time in foster placement counts toward a six month waiting period, and allows for an adult with a developmental disability to be adopted (in addition to an adult with an intellectual disability). The bill allows for greater financial support for pregnant mothers and allows the for reconsideration of an adoption decree if there is evidence of the child being a victim of human trafficking. Overall, the bill will help to modernize Ohio’s adoption laws to help ease the process for all people involved in the adoption process. 

House Bill 338 – Child support for children over 18 with disability

Due in large part to the advocacy efforts of the Ohio Bar’s Family Law Committee, House Bill 338 passed this December will assist with uniformity across Ohio jurisdictions regarding child support orders. HB338 clarifies and enacts various provisions in chapters 3119 and 3109 to ensure the consistent availability of child support orders for parents who divorce after a disabled child turns 18. The new laws are anticipated to take effect in the first quarter of 2025. For more on HB 338, review the Ohio Bar Weekly Legislative Report from December 6, 2024. 

House Bill 234 – Sentencing offenders who enter Alford pleas, Suspension of local officials charged with felonies, Sealing & expungement eligibility changes

This bill awaits House concurrence with Senate amendments but is anticipated to advance to the Governor’s desk for signature this session. HB 234 addresses three aspects related to criminal law:  

1. prohibits a sentencing court from considering an offender’s “genuine remorse” if the offender entered an Alford plea;  

2. revises language, expands definition of “prosecuting officer,” and clarifies time periods in the statute addressing the process by which a local official charged with a felony can be suspended by a special commission formed by the Ohio Supreme Court; and 

3. expands eligibility for sealing and expungement for third-degree felonies in certain circumstances and misdemeanor convictions for violating a protection order or domestic violence and eliminates eligibility for sealing or expungement for a conviction of theft in office. 

House Bill 111 – Increased penalty for third degree felony domestic violence 

Also anticipated to take effect in early 2025 is HB 111 which amends chapters 2903, 2919, and 2929 of the ORC to increase the sentencing range for third-degree felony domestic violence convictions and create a presumption of the imposition of a prison term for this offense. If an offender has more than one prior conviction for domestic violence, a subsequent offense can be charged as a third-degree felony. HB 111 changes the current sentencing guidelines from no presumption of incarceration or community control to a presumption in favor of incarceration and increases the minimum prison term to 12 months. 

Senate Bill 100 – Prohibiting the installation of a tracking device or app without consent 

Senate Bill 100 was sent to Governor DeWine following the Senate’s concurrence vote on December 11. Sub. SB 100 amends various sections of the ORC to prohibit the use of a tracking device or digital application without the consent of the person being monitored or when the consent is revoked. There are a number of exceptions including for law enforcement, parents and legal guardians of minors, caregivers for elderly or disabled adults if certified by a treating physician, and in some situations by a private investigator.  A first offense is a first degree misdemeanor, with the potential for enhancement to a fourth degree felony for subsequent offenses or if the offender has a history of violence or other circumstances exist.  

In addition, SB 100 as amended increases fines for repeatedly selling tobacco products to underage persons or without checking identification when selling tobacco products (RC 2927.02). The law also designates tobacco retailers that repeatedly violate underage tobacco retail laws as “public nuisances” which will subject the operator to civil action (RC 3767.01 and 4301.74).  

Also added to SB100 are amendments to the testing of oral fluid from a person arrested for operating a vehicle under the influence. See the Substitute Bill Comparative Synopsis for more on these amendments and additions to Chapters 1547 and 4511, etc.  

Senate Bill 63 – Requires disclosures by plaintiff in a tort action alleging an asbestos claim

Senate Bill 63 will enact ORC Section 2307.931 to require disclosures and impose a continuing duty to provide information when initiating a tort action alleging an asbestos claim. In its recent form awaiting concurrence by the Senate, Sub. SB 63 requires that within 60 days of filing any complaint, a plaintiff in any tort action who alleges an asbestos claim must provide all parties with a sworn statement specifying the basis for each claim against each defendant, including the following (R.C. 2307.931(A)): 

1. The name, address, date of birth, marital status, occupation, smoking history, current and past worksites, and current and past employers of the exposed person and any person through whom the person was exposed to asbestos; 

2. The name and address of each person who is knowledgeable regarding the exposed person’s exposures to asbestos; 

3. The asbestos-containing product for each defendant to which the exposed person was exposed or to which the other person was exposed if exposure was through another person; 

4. The sites that establish the direct connection between the exposed person, or the other person if exposure was through another person, and each defendant; 

5. The beginning and ending dates of each exposure to asbestos or an asbestos-containing product for the exposed person or the other person if the exposure was through another person; 

6. The asbestos-related disease that is alleged; 

7. Any supporting documentation relating to the required disclosures listed above. 

The legislation, if adopted in its current form, will require that on a motion by a defendant, the court must dismiss the plaintiff’s asbestos claim without prejudice if the defendant’s asbestos-containing product or site is not identified in the disclosures required in the plaintiff’s sworn statement or the plaintiff fails to comply with the requirements for filing the sworn statement (R.C. 2307.931(D)). However, if plaintiff shows good cause as to the nondisclosure, the court is prohibited from dismissing the action under division (D) of the section. 

Senate Bill 37 – Changes to driver’s license suspensions and penalties for failure to provide proof of financial responsibility 

With an incredibly broad coalition of proponents supporting Senate Bill 37 at the outset, this legislation sought to reduce the use of license suspension as a penalty for criminal offenses and to lower reinstatement fees. Co-Sponsor Senator Catherine Ingram (D-Cincinnati) introduced this legislation to help provide a “more flexible path for individuals regain their licenses, and help prevent the cycle of punishment” due to lack of transportation. In its latest form, SB 37 eliminates the penalty of a license suspension for truancy, reduces the circumstances in which felony drug convictions require license suspensions, reduces various fees, and allows for limited driving privileges for those under non-support suspensions, and includes other provisions now regarding police and EMS training and feminine hygiene products in local correctional facilities and state correctional institutions. Keep an eye on this legislation as it proceeds through next steps. 

Senate Bill 237- Enacting the Uniform Public Expression Protection Act (UPEPA) or “Anti-SLAPP” legislation 

Supported by the Ohio Bar Board of Governors with strong proponent testimony offered by Ohio Bar Media Law Committee member Jeff Nye, Senate Bill 237 is intended to prevent litigation that suppresses and intimidates people who express their opinions and experiences in public. “Strategic lawsuits against public participation” or “SLAPP” are disfavored by the Ohio Constitution’s strong protections for free speech, argues Nye in his proponent testimony, but the lack of a statute that codifies consequences for such litigation enables bad actors. The UPEPA extends immunity to suit, not just immunity from liability, while creating a path for expedited relief. 

The waning days of the year present a good time to “tie up” and “tidy up”! Here are some steps to take to help you close out this year. 

“Tie up” the loose ends of client communication. Is there a representation the hasn’t moved forward because you and the client never seem to connect? Or are there missed calls that always seem to end up on phone tag? NOW is a good time to send an email with dates and times for a call. Then follow up and get a decision on what will happen next. 

“Tie up” missing parts and pieces of information. Whether it’s a record request or a document a client needs to get to you. Take the time to get what you need to obtain that missing piece! 

“Tidy up” your work area! That may mean you do you “periodic” pile clearing and actually see the top of your desk. Or it may mean going through your email folders and clearing out messages that shouldn’t be kept or moving them to the appropriate file.  

Look around your work- space and clear out the clutter! Depending on your client file retention policy, client files can be given to the client at the conclusion of representation. Closed files can be scanned and paper files shredded. Clearing the work-space can help facilitate a clean start to the new year! 

OBLIC’s subsidiary, the Ohio Bar Insurance Agency, is now offering Pet Insurance! Pet Insurance can help protect your pet by providing coverage for veterinary care. More than ever, pets play a huge role in our lives.  

We want to do everything to keep them safe and healthy. Help make sure your furry family members are protected against unplanned vet expenses for covered accidents or illnesses with MetLife Pet Insurance. 

With MetLife Pet Insurance, you can get: 

• Flexible insurance plans 

• Freedom to visit any U.S. veterinarian and be reimbursed up to 90% of the cost of services 

• Optional Preventive Care coverage 

• 24/7 access to Telehealth Concierge Services for immediate assistance 

• Discounts up to 30% and additional offers on pet care, where available 

• Coverage of previously covered pre-existing conditions when switching providers 

To enroll in these benefits and to learn more about coverage restrictions and details, call or email Ohio Bar Insurance Agency Senior Agent Danna Blackburn at (614) 572-0616 and [email protected].