Four recent Opinions by the Ohio Board of Professional Conduct addressed a variety of practice issues. We reported these Opinions in the Summer Malpractice Alert and the following are brief summaries.
Opinion 2023-03 Application of Code of Judicial Conduct to Mayor’s Court Magistrates will be of particular interest to those who practice before Mayor’s Court, mayors, and mayor’s court magistrates. It is especially relevant to a mayor’s court magistrate who may wish to engage in political activity.
The Opinion notes that Ohio law does not require mayors hearing cases in a mayor’s court to be licensed to practice law. Further, the definition of “court” in the Rules of Superintendence for the Courts of Ohio does not include mayor’s courts. There are also separate Traffic Rules and Mayor’s Court Education and Procedure Rules. These factors lead to the conclusion that mayors are excluded from the application of the Code of Judicial Conduct and a mayor’s court magistrate appointed by a mayor to perform the same duties is similarly exempt from the application of the Code of Judicial Conduct.
The Opinion indicates that because a mayor’s court is not treated by case law, statute, or Supreme Court rule as a court exclusively within the judicial branch, a lawyer serving as a mayor’s court magistrate is not performing “judicial functions within a court,” pursuant to Jud.Cond.R., Application, I(B), and the conduct of a mayor’s court magistrate is not subject to the Code of Judicial Conduct.
Moreover, the Code of Judicial Conduct then does not govern the political activity of a mayor’s court magistrate who may act as or seek to be a leader of, or hold an office in, a partisan state, county, or local party. However, any professional misconduct committed by a lawyer appointed as a mayor’s court magistrate may be subject to review under the Rules of Professional Conduct.
Opinion 2023-04 Compliance with Subpoena Duces Tecum for Former Client’s File discusses a scenario familiar to the loss prevention and claims team at OBLIC. An attorney insured with OBLIC who receives a subpoena for a former client’s file or a request to testify should immediately contact OBLIC.
The Opinion addresses the ethical duties involved when evaluating a response to a subpoena. When a subpoena duces tecum is received for a former client’s file, the attorney must promptly notify the former client (Prof.Cond.R.1.4) and seek the client’s informed consent to disclose the information of the client in the file (Prof.Cond.R.1.6).
If the former client gives informed consent, the disclosure of the client’s information should be only “to the extent reasonably necessary to comply” with the subpoena. If the former client wants to challenge the subpoena, the Opinion recommends taking reasonable steps through written objections served on the issuing party or filing a motion to quash. The Opinion also discusses the opportunity to appeal an adverse ruling.
The Opinion advises that if the former client cannot be timely located and all reasonable efforts to locate the former client are unsuccessful, then the lawyer should assert all reasonable claims on behalf of the unavailable former client.
Important to note, the Opinion concludes that as a best practice, a lawyer may consider including in all client fee agreements a provision that anticipates payment for the lawyer’s services and any costs associated with a demand for client information protected by Prof.Cond.R. 1.6 that is received after termination of the representation. See ABA Formal Opinion 473 (2016).
Opinion 2023-05 Appearance of a Lawyer with the Law Firm of a Judge’s Spouse discusses Jud.Cond.R. 2.11 that requires a judge to disqualify from a matter under specific circumstances, including whether the judge’s impartiality might reasonably be questioned.
The Opinion states that when a lawyer affiliated with a judge’s spouse makes an appearance before the judge, the judge must consider: 1) whether hearing the matter may cause the judge’s impartiality to be reasonably questioned, and 2) whether the judge or the spouse has more than a de minimis interest that could be substantially affected by the proceeding.
The Opinion notes that disqualification is not always required when a lawyer who practices law with someone with whom the judge maintains a close relationship appears before the judge. The materiality of the interest is important. The Opinion says that if a judge determines that the spouse’s economic interest will be substantially affected by the case’s outcome, then the judge’s disqualification is required. It is also important that a judge makes a reasonable effort to keep informed about the personal economic interests of his or her spouse or domestic partner and independently consider the facts of each situation.
Lastly, the Opinion addressed a waiver of disqualification, stating that the ability to seek a waiver is not appropriate in all situations and a judge should carefully consider making the request only after ascertaining that he or she can proceed fairly and impartially in the case even when the parties have waived the disqualification.
Opinion 2023-06 Child Support Enforcement Agency Staff Attorney’s Prior Service as a Child Support Enforcement Agency Administrative Hearing Officer involves a situation governed by Prof.Cond.R. 1.12 which provides that a lawyer shall not represent anyone in connection with a matter in which a lawyer participated personally and substantially as a judge or other adjudicative officer. The Opinion also references Prof.Cond. R. 1.7 and R.C. 102.03(A), regarding representation by a present or former public official.
The Opinion indicates that absent informed consent confirmed in writing, a CSEA staff attorney may not represent the state in an action in which that staff attorney issued administrative orders as an administrative hearing officer. However, the Opinion states that while the conduct may be technically permissible pursuant to Prof.Cond.R. 1.12, the Board remains of the opinion that the better practice is to assign or hire a different CSEA staff attorney to handle these matters.
We realize that some of these Opinions may have limited applicability, depending on the practice of each individual attorney. Advisory Opinions are nonbinding responses to inquiries regarding the application of Ohio Rules of Professional Conduct and other applicable ethics rules. These opinions do not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. They are intended to provide advice for licensed attorneys. Advisory Opinions issued from 1986 forward can be searched by keyword or subject matter here.
As always, if there are any questions about these Opinions or any other loss prevention topic, please do not hesitate to contact us here at OBLIC.
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
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.