Ethics Update

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1 Ethics Update Charles J. Kettlewell, Esq. Charles J. Kettlewell, LLC Columbus, Ohio Table of Contents Ethics Update PowerPoint Presentation Ethics Update i

2 ii Supreme Court Year in Review

3 Presented by ETHICS UPDATE Charles J. Kettlewell 445 Hutchinson Avenue, Suite 100 Columbus, Ohio CASE-RELATED STATISTICS Ethics Update 1

4 CASE-RELATED STATISTICS Disciplinary Demographics ( ) A look at respondents who are disciplined Board Case Dispositions ( ) Measure of Board s consideration and disposition of cases Demographics of attorneys disciplined by Supreme Court in past five years ( merit cases only): Practice type Years in practice Gender DISCIPLINARY DEMOGRAPHICS Law schools 2 Supreme Court Year in Review

5 DISCIPLINARY DEMOGRAPHICS DISCIPLINARY DEMOGRAPHICS Ethics Update 3

6 DISCIPLINARY DEMOGRAPHICS DISCIPLINARY DEMOGRAPHICS 4 Supreme Court Year in Review

7 MOST COMMON GROUNDS FOR DISCIPLINE Neglect Excessive/unearned fees Co-mingling Personal misconduct NEWLY ADMITTED LAWYERS Lawyers in practice less than 10 years 28 cases (approx. 10%) from cases practice-related misconduct 10 cases involved personal misconduct, unrelated to practice Ethics Update 5

8 NEWLY ADMITTED LAWYERS 3 respondents with multiple violations in first 10 years 1 disbarred; 1 pending disbarment recommendation; 6 indefinite suspensions 20 of 28 respondents were sole practitioners 5 cases had OLAP requirements as part of the sanction ADVISORY OPINIONS 6 Supreme Court Year in Review

9 . OPINION Flat Fee Agreements Paid In Advance Of Representation SYLLABUS: It is proper for a lawyer to enter a flat fee agreement requiring a client1 to pay a fixed amount in advance of representation. The flat fee agreement must comport with the Ohio Rules of Professional Conduct. Under Prof.Cond.R. 1.15(c), a lawyer is required to deposit flat fees and expenses paid in advance for representation into an IOLTA account, unless designated as earned upon receipt or similarly, and only may withdraw the fees as they are earned or the expenses as they are incurred. This is a change from former DR 9-102(A). Even if a flat fee paid in advance of representation is deemed earned upon receipt, nonrefundable, or similarly, Prof.Cond.R. 1.5 requires a lawyer to return any unearned portion of the fee if the lawyer does not complete the representation for any reason. Additionally, the Rules also require that a flat fee must not be excessive under Prof.Cond.R. 1.5(a); that a lawyer shall not provide financial assistance to a client, aside from advances of court costs and expenses of litigation under Prof.Cond.R. 1.8(e); and a lawyer is required to provide competent and diligent representation to each client under Prof.Cond.R. 1.1 and 1.3. OPINION Duty to Report Unprivileged Knowledge of Misconduct SYLLABUS: A lawyer is required under Prof.Cond.R. 8.3 to report any unprivileged knowledge of a violation of the Rules of Professional Conduct to the Office of Disciplinary Counsel or a bar association's certified grievance committee. A lawyer shall not reveal privileged information relating to the representation of a client, including information protected by the attorney-client privilege. Prof.Cond.R. 1.6(a). A lawyer may reveal information relating to the representation of a client if the client gives informed consent under Prof.Cond.R Ethics Update 7

10 OPINION Lawyer Participation in Referral Services SYLLABUS: A lawyer should carefully evaluate a lawyer referral service, or similar online model, to ensure that it complies with the Rules of Professional Conduct and the ethical requirements of the lawyer. Where the service meets all of the elements of a lawyer referral service, a participating lawyer must ensure that the service complies with Gov. Bar R. XVI, in order for the lawyer to comply with the Rules of Professional Conduct. A lawyer s participation in an online, nonlawyer-owned legal referral service, where the lawyer is required to pay a marketing fee to a nonlawyer for each service completed for a client, is unethical. A lawyer must ensure that the lawyer referral service does not interfere with the lawyer s independent professional judgment under Prof. Cond. R A lawyer is responsible for the conduct of the nonlawyers of the service (Prof. Cond. R. 5.3), as well as the advertising and marketing provided by the service on the lawyer s behalf. Prof. Cond. R. 7.1, 7.2, 7.3. Additionally, a fee structure that is tied specifically to individual client representations that a lawyer completes or to the percentage of a fee is not permissible, unless the lawyer referral service is registered with the Supreme Court of Ohio. Prof. Cond. R. 1.5, Gov. Bar R. XVI. OPINION Imputation of Conflicts Involving Current and Former Legal Interns SYLLABUS: A law student holding a legal intern certificate, issued by the Supreme Court under Gov. Bar R. II, is engaged in the limited practice of law and bound bythe Rules of Professional Conduct. Conflicts of interest arising out of a legal intern s current or former representation of clients are imputed to all lawyers in a private law firm when the intern is employed simultaneously as a law firm clerk. The conflicts of a former legal intern, newly employed as a lawyer, are not imputed to the lawyers in a law firm, but necessitate the screening of the lawyer from any matter he or she had substantial responsibility. 8 Supreme Court Year in Review

11 OPINION Communication With Current and Former Corporate Employees SYLLABUS: When a corporation is known to be represented with respect to a particular matter, Prof. Cond. R. 4.2 prohibits communication without the consent of the corporate lawyer with a current employee of the corporation who supervises, directs, or regularly consults with the corporation s lawyer concerning the matter, who has authority to obligate the corporation with respect to the matter, or whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability. A lawyer may communicate on the subject matter of the representation with former employees of the corporation, without notification or consent of the corporation s lawyer, as long as the former employee is not represented by counsel. A lawyer representing an interest adverse to a corporation may communicate with certain employees of the corporation without the consent ofacorporation s lawyer, even when a corporate lawyer asserts blanket representation of the corporation and all of its current and former employees. OPINION Ethical Implications for Lawyers under Ohio s Medical Marijuana Law SYLLABUS: A lawyer may not advise a client to engage in conduct that violates federal law, or assist in such conduct, even if the conduct is authorized by state law. A lawyer cannot provide legal services necessary for a client to establish and operate a medical marijuana enterprise or to transact business with a person or entity engaged in a medical marijuana enterprise. A lawyer may provide advice as to the legality and consequences of a client s proposed conduct under state and federal law and explain the validity, scope, meaning, and application of the law.* A lawyer s personal use of medical marijuana pursuant to a state regulated prescription, ownership in, or employment by a medical marijuana enterprise, subjects the lawyer to possible federal prosecution, and may adversely reflect on a lawyer s honesty, trustworthiness, and overall fitness to practice law. *Some portions of the opinion are not current due to the Supreme Court s subsequent amendment to Prof. Cond. R. 1.2, effective September 20, See Prof. Cond. R. 1.2(d)(2), which provides: (2) A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law Ethics Update 9

12 OPINION Lawyer s Duty to Promptly Deliver Funds to a Client or Third Party SYLLABUS: A lawyer may hold a client s funds in trust for a reasonable period of time to ensure that the check has cleared and the funds are available to distribute to the client or third party. Subject to the exceptions set forth in this opinion, a reasonable period of time consists of one week to ten days, given federal banking regulations and modern banking practices. OPINION Client Testimonials in Lawyer Advertising and Online Services SYLLABUS: 1. A lawyer may include a client testimonial in advertising so long as it does not constitute a false, misleading, or nonverifiable communication about the lawyer or the lawyer s services or create unjustified expectations for prospective clients. Testimonials generally referring to favorable outcomes for clients must contain an appropriate disclaimer to avoid unjustified expectations. 2. Client testimonials in an advertisement that state the amount of a settlement or verdict are inherently misleading even if a disclaimer is used. (Emphasis added.) 3. A lawyer is responsible for monitoring testimonials and reviews made by clients on websites if the lawyer controls the content of the website. Online testimonials or reviews from clients about the lawyer or the lawyer s services that contain false, misleading, or nonverifiable communications must be removed by the lawyer when the lawyer has control over the online content. 10 Supreme Court Year in Review

13 But See Comment 3 To Prof. Cond. Rule 7.1: [3] An advertisement that truthfully reports a lawyer s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client s case. Similarly, an unsubstantiated comparison of the lawyer s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public. (Emphasis added.) OPINION Out-of-State Lawyer Practicing Exclusively Before Federal Courts oragencies SYLLABUS: An out-of-state lawyer who is admitted and in good standing in another United States jurisdiction, and also is admitted or authorized by law to appear before a federal court or agency in Ohio, may maintain an office or other systematic and continuous presence in Ohio. An out-of-state lawyer who is engaged in a federal practice and maintains a physical office in Ohio, may not provide legal services based on Ohio law to clients. The letterhead of a lawyer not licensed to practice law in Ohio, engaged in a federal practice, and who maintains an office or other systematic and continuous presence, may include the designation Attorney at Law, but must identify the federal courts or agencies to which the lawyer is admitted or permitted to appear and include an appropriate disclaimer regarding his or her jurisdictional limitations Ethics Update 11

14 OPINION Duty to Preserve Confidential Information of a Prospective Client SYLLABUS: A lawyer owes a duty of confidentiality under Prof. Cond. R. 1.18, to a prospective client regarding information learned in a preliminary conference between the prospective client and the lawyer. Prof. Cond. R extends the protections of confidentiality and attorney-client privilege to a person who consults with a lawyer for legal representation, even if the lawyer is not retained to represent the prospective client. Thus, a lawyer may not reveal information learned in a consultation unless the prospective client gives informed consent. If a client voluntarily testifies concerning a communication made by him, as a prospective client, to a lawyer orconcerningthe lawyer s advice to him, and then the lawyer is compelled to testify on the same subject under R.C , the lawyer is allowed, under Prof. Cond. R. 1.6, to reveal only those confidences to which the prospective client voluntarily testified or as otherwise ordered by the court. OPINION Division of Fees By Lawyers Not in the Same Firm SYLLABUS: Lawyers who practice in association with each other, but not in a partnership, of counsel, or other permissible legal arrangement are not considered lawyers in the "same firm" for purposes of the division of fees under Prof. Cond. R. 1.5(e). Lawyers who informally practice in association with each other must comply with the restrictions contained in Prof. Cond. R. 1.5(e) when dividing fees. Lawyers may divide fees in proportion to the services performed or by assuming joint responsibility for the matter. When lawyers who are not in the same firm agree to a division of legal fees, a written contingent fee agreement signed by the lawyers and the client under Prof. Cond. R. 1.5(c)(1) and the client s written consent to the division of fees under Prof. Cond. R. 1.5(e)(2) are required. Each lawyer in a shared fee arrangement must give notice to the client as required by Prof. Cond. R. 1.4(c), if the lawyer does not maintain professional responsibility insurance in the amounts specified in the rule, or if the lawyer s insurance has been terminated. 12 Supreme Court Year in Review

15 OPINION Conflict of Interest when Spouse of Criminal Defendant s Lawyer is an Officer Employed by Arresting or Investigating Agency (Omitted ) OPINION Advertisement of Contingent Fee Arrangements SYLLABUS: A lawyer who advertises litigation services on a contingent fee basis may not use statements such as There is no charge unless we win your case or No fee without recovery, if the lawyer intends to recover advanced litigation costs and expenses from the client, regardless of the outcome of the litigation. If a lawyer intends to recover advanced costs and expenses of litigation from the client, a disclaimer is required in the advertisement that explains the client s obligations for repayment Ethics Update 13

16 OPINION Duty of Judge to Report Misconduct SYLLABUS: A judge who has knowledge that another judge has committed a violation of the Code of Judicial Conduct that raises a question regarding the judge s honesty, trustworthiness, or fitness as a judge in other respects is required to report it to the appropriate disciplinary authority. Jud. Cond. R. 2.15(A). Likewise, a judge who has knowledge of a lawyer s violation of the Rules of Professional Conduct has an ethical duty to report it to the disciplinary counsel or a local certified grievance committee. Jud. Cond. R. 2.15(B). A report of misconduct by a judge should be made within a reasonable time after the judge becomes aware of the violation. If a judge does not have actual knowledge, but receives information indicating a substantial likelihood that another judge or lawyer has committed reportable misconduct, then the judge should take appropriate action, which may include communicating directly with the judge or lawyer involved, communicating with a supervisor, partner, or colleague, or reporting the suspected violation to the appropriate disciplinary authority. Jud. Cond. R. 2.15, cmt. [2]. Additionally, a judge who reports a lawyer s misconduct to the proper disciplinary authority is not presumptively disqualified from presiding over cases in which that lawyer appears. OPINION Solicitation of Professional Employment Via SYLLABUS: A lawyer may use to solicit professional employment, subject to the restrictions contained in the Rules of Professional Conduct concerning lawyer communications and solicitation. A lawyer may allow a lawyer referral service or a lawyer advertising service to transmit a solicitation on the lawyer s behalf. However, the lawyer remains responsible for the content of the and must ensure that the communication complies with the Rules of Professional Conduct. 14 Supreme Court Year in Review

17 OPINION Legal Representation of a Client by Former Magistrate (Omitted ) OPINION Virtual Law Office SYLLABUS: An Ohio lawyer may provide legal services via a virtual law office through the use of available technology. When establishing and operating a virtual law office, a lawyer must maintain the requisite competence regarding the technology he or she employs and use reasonable efforts to prevent the inadvertent disclosure of information related to the representation of the client. A lawyer operating a virtual law office must maintain adequate communication with his or her client, regardless of the type of technology used. The office address of a lawyer required in a lawyer s written and electronic communications must include the address of the lawyer s home or physical office, the address of shared office space, or a registered post office box. A lawyer operating a virtual law office may utilize shared, nonexclusive office space with lawyers or nonlawyers, within certain guidelines Ethics Update 15

18 OPINION Specialized Docket Courts and Nonprofit Organizations (Omitted ) OPINION Judicial Participation in a Community Parade SYLLABUS: A judge generally may participate in a community parade during either an election or nonelection year. However, a judge should avoid participation in a parade if it will reflect adversely upon his or her integrity, independence, or impartiality. In addition, in order to avoid the appearance of an endorsement, a judge should not walk or appear in a parade on floats or vehicles with nonjudicial candidates or nonjudicial elected officials, or permit his or her signage to be displayed with that of other public officials or candidates 16 Supreme Court Year in Review

19 ETHICS PRACTICE GUIDES SWITCHING FIRMS GUIDE (2017) SUCCESSION PLANNING GUIDE (2017) CLIENT FILE RETENTION GUIDE (2016) CASE LAW TRENDS Ethics Update 17

20 Several cases in with 8.4(h) violations. Bricker standard: DISCIPLINARY CASES 8.4(h) Misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer s fitness to practice law. Proof that the conduct giving rise to a specific rule violation is so egregious as to warrant an additional finding that it adversely reflects on the lawyer s fitness to practice law. DISCIPLINARY CASES Disciplinary Counsel v. Martyniuk, 2017-Ohio-4329: Respondent pled guilty to 20 fourth degree felonies pandering sexually oriented material involving a minor. Five years probation; sex offender status. Possession of materials was sufficiently egregious to warrant 8.4(h) violation. Indefinite suspension with no credit for time served. 18 Supreme Court Year in Review

21 DISCIPLINARY CASES Disciplinary Counsel v. Martyniuk continued Never engaged in practice of law. Was working at the Kent Free Library- child pornography found on office computer. Indefinite suspension: See Disciplinary Counsel v. Grossman, 143 Ohio St.3d 302, 2015-Ohio-2340, 37 N.E.3d 155 (indefinitely suspending an attorney convicted of receiving visual depictions of child pornography after he was caught in a law-enforcement operation in which he had discussed various sex acts involving a fictitious 11-year-old girl and had gone to a prearranged location expecting to meet her); Dayton Bar Assn. v. Ballato, 143 Ohio St.3d 76, 2014-Ohio- 5063, 34 N.E.3d 858 (indefinitely suspending an attorney convicted of a single count of possessing child pornography that he ordered and downloaded from the Internet); Disciplinary Counsel v. Butler, 128 Ohio St.3d 319, 2011-Ohio-236, 943 N.E.2d 1025 (indefinitely suspending an attorney convicted of ten felony counts involving pandering sexually oriented material involving a minor). DISCIPLINARY CASES Disciplinary Counsel v. Alo, 2017-Ohio-4270: Respondent conspired to commit bribery, wire fraud, and money laundering with the state treasurer CFO which allowed illegal commissions to be paid to Respondent and others. Convicted of wire fraud to deprive of honest services of public official. 4 years/3 probation. Misconduct was sufficiently egregious to warrant 8.4(h) violation. Permanent Disbarment Ethics Update 19

22 Disciplinary Counsel v. Alo continued DISCIPLINARY CASES Given the scope and magnitude of Alo s misconduct at issue in his two recent disciplinary cases including his felony conviction, his misappropriation of client funds, and his complete failure to cooperate or participate in the disciplinary process we conclude that he is no longer fit to practice law in Ohio. We agree with the board s ultimate conclusion. Permanent disbarment is an appropriate sanction for conduct that violates Prof.Cond.R. 8.4(b), (c), and (h) and results in a felony conviction. See Disciplinary Counsel v. Stern, 106 Ohio St.3d 266, 2005-Ohio-4804, 834 N.E.2d 351, 8. For example, we disbarred an attorney who was convicted of felony conspiracy based on his participation in a scheme in which the Cuyahoga County auditor s office awarded contracts to the attorney and his law partners in exchange for their paying kickbacks to certain employees in the auditor s office. Disciplinary Counsel v. Zaccagnini, 130 Ohio St.3d 77, 2011-Ohio-4703, 955 N.E.2d 977. We also disbarred an attorney convicted of conspiracy to commit mail fraud and wire fraud relating to his participation in a criminal plan to induce real-estate agents and appraisers to join professional organizations based on false promises. Toledo Bar Assn. v. Ritson, 127 Ohio St.3d 89, 2010-Ohio-4504, 936 N.E.2d 931. DISCIPLINARY CASES Disciplinary Counsel v. Hoskins, 2017-Ohio-2924: Respondent continued to practice law while his license was suspended, impersonated a former colleague in dealings with opposing counsel and the courts of this state, lied to his clients about the status of his license to practice law, and failed to respond to relator s demands for information. Disbarment = customary sanction for violations of suspension orders on multiple occasions and failure to cooperate in the ensuing disciplinary investigation. 20 Supreme Court Year in Review

23 DISCIPLINARY CASES Disciplinary Counsel v. Hoskins continued Hoskins has a significant prior disciplinary record, including the suspension of his Kentucky law license, our reciprocal suspension of his Ohio license, our subsequent finding that he was in contempt of that reciprocal suspension, and our indefinite suspension of his Ohio And we have customarily imposed that sanction on attorneys who violated our suspension orders on multiple occasions and then failed to cooperate in the ensuing disciplinary investigation. In light of Hoskins s extensive pattern of deliberately and repeatedly violating this court s prior orders, the presence of numerous aggravating factors, and the absence of significant mitigating factors, we find that permanent disbarment is the only appropriate sanction in this case. DISCIPLINARY CASES Columbus Bar Ass n v. Lindner, 2017-Ohio-2924: Respondent pleaded guilty to two counts of attempted child endangerment; guilty to leaving the scene of an accident, falsification and OVI. 8.4(h) based on volume, seriousness, recklessness, and repetitiveness of [respondent s] unremitting lawless behavior, & outstanding warrants for arrest and failure to take corrective action are sufficiently egregious. Indefinite suspension Ethics Update 21

DISCIPLINARY CASE STATISTICS /31/2018. Court Action on Board Recommended Sanction

DISCIPLINARY CASE STATISTICS /31/2018. Court Action on Board Recommended Sanction DISCIPLINARY CASE STATISTICS 2015-2017 Supreme Court Decisions (excluding defaults and reinstatements) 51 68 41 Sanctions Imposed Public reprimand 19 10 5 (excluding defaults) Term suspension 25 44 24