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2018 Ethics Symposium- Akron Bar

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Oh *!?#@ I Got a Grievance
Jane Gleaves, Esq., Associate, Kegler Brown Hill + Ritter

The Akron Bar Association’s Grievance Committee: A Snapshot of Our Process
Wayne Rice, Esq., Akron Bar Counsel

The Unauthorized Practice of Law: A Trap for the Unwary
Jonathan E. Coughlan, Esq., Coughlan Law Firm LLC

Switching Law Firms: Walking the Tight Rope
Chris Weber, Esq., Managing Director, Kegler Brown Hill +Ritter

Ethical Pitfalls in the Transactional Practice
Jason Beehler, Esq., Kegler Brown Hill + Ritter

Publicado en: Empresariales
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2018 Ethics Symposium- Akron Bar

  1. 1. Oh *!?#@ I Got a Grievance Attorney Discipline in Ohio Presented by Jane K. Gleaves, Esq.
  2. 2. Gov. Bar Rule V Allegations of violations of the Rules of Professional Conduct + the Judicial Canons Driven by grievances May be brought by Ohio Disciplinary Counsel or the Certified Grievance Committee of a local bar association Heard by the Board of Professional Conduct
  3. 3. Oh *!?#@, I got a grievance
  4. 4. Letter of INQUIRY
  5. 5. Confidential Copy of grievance 2 weeks to respond RESPOND!!
  6. 6. INVESTIGATION Includes: Response from attorney/judge Documents, court files + witness statements Determination of probable cause
  7. 7. Send copy to attorney/judge 1
  8. 8. Review response 2
  9. 9. File with summary of investigation + response 3
  10. 10. 3-member panel of the Board determines whether there is probable cause to file the complaint publicly
  11. 11. Does probable cause exist to file a complaint? The process of determining whether probable cause exists can take up to 6 months
  12. 12. Confidentiality Grievant given immunity Dismissed + confidential if not certified During that 6 Months
  13. 13. Complaint is certified + made public
  14. 14. Case is made public + assigned to a different 3-member panel
  15. 15. Hearing within 150 DAYS
  16. 16. HEARING Rules of Evidence Clear + Convincing Issues: Facts, Violations + Sanctions Panel Can Dismiss
  17. 17. Board Deliberates Panel Reports to Board
  18. 18. Dismiss Recommend findings of fact, conclusions of law + a sanction OR
  19. 19. Show cause order Briefs filed Oral argument set Court not bound by Board’s recommendation
  20. 20. Sanction Issues Cooperation Restitution Remorse/ Attitude Harm to Client Pattern of Misconduct
  21. 21. Mitigating Factors Absence of prior disciplinary record Absence of dishonest or selfish motive Timely good faith effort to make restitution Full + free disclosure in disciplinary process Character or reputation Imposition of other sanctions Chemical dependence or mental disability
  22. 22. Sanction Spectrum Private Reprimand Public Reprimand Term Suspension Indefinite Suspension Permanent Disbarment
  23. 23. Anywhere from for a case that is prosecuted 1-2 YEARS
  24. 24. STATISTICS
  25. 25. 71Complaints Filed with the Board 1385Total Dismissals After Initial Review 2138Total Investigations 3523 Total Grievances Statewide
  26. 26. Most Common Grievances Neglect/failure to protect client’s interest Failure to maintain funds in trust Excessive Fee Trial Misconduct Judicial Misconduct 26% 12% 9% 7% 7%
  27. 27. Takeaways Communicate with clients1 Answer a letter of inquiry2 Cooperate with the process3
  28. 28. Jane K. Gleaves Kegler Brown Hill + Ritter jgleaves@keglerbrown.com keglerbrown.com/gleaves 614-462-5484
  29. 29. THE AKRON BAR ASSOCIATION’S GRIEVANCE COMMITTEE: A SNAPSHOT OF OUR PROCESS
  30. 30. The Akron Bar Association maintains a Certified Grievance Committee in accordance with Gov. Bar R V, Section 5. The Grievance Committee investigates allegations of misconduct by, and mental illness, alcohol and other drug abuse, or disorder affecting attorneys who reside or maintain their principal office in Summit County. We use the address with which the attorney is registered with the Supreme Court to determine jurisdiction.
  31. 31. The Grievance Committee does not investigate allegations of misconduct by judicial officers (including magistrates), officers and members of the Board of Trustees of the Bar Association and members of the Grievance Committee and its Investigative Subcommittee. Grievances against any of these individuals are referred to the Office of Disciplinary Counsel.
  32. 32. As required by Gov. Bar R. V, Section 6, the Bar Association has Bar Counsel who has been certified by Disciplinary Counsel. In the past, Bar Counsel was a contract position. Currently, it is a full-time staff position. Bar Counsel supervises the receipt and investigation of grievances and the prosecution of formal complaints before the Board of Professional Conduct and the Supreme Court.
  33. 33. Grievances must be in writing and may be submitted by mail, fax or in person. E-mail submissions are not accepted. Upon receipt, Bar Counsel reviews the grievance and determines whether it contains any allegations, which if proven, would constitute professional misconduct under the Ohio Rules of Professional Conduct.
  34. 34. No allegations of professional misconduct: Bar Counsel sends a “dismissed on intake” letter to the grievant with an appropriate explanation as to why no investigation will be opened. A copy of the letter and of the grievance are sent to the attorney. If there appears to be allegations of misconduct, Bar Counsel has the discretion to resolve the matter (i.e. call the attorney and ask that he or she contact the client, return the file, etc.) or assign it for investigation.
  35. 35. If assigned for investigation, Bar Counsel notifies both the grievant and respondent (attorney being investigated) of the Investigative Subcommittee member who will be investigating the grievance. The respondent will be provided a copy of the grievance and asked to provide a written response as well as evidence of malpractice insurance or the communication required by Prof. Cond. R. 1.4, a copy of the fee agreement, if any, and proof that the grievant’s retainer was deposited in the respondent’s IOLTA.
  36. 36. The respondent also is provided with a form that he or she can use to request that we not provide his or her written response to the grievant (however, the investigator verbally can summarize the response to the grievant). We also advise the respondent that failure to provide a response and/or cooperate with the investigation is, in and of itself, a violation of the Ohio Rules of Professional Conduct and Gov. Bar R. V.
  37. 37. Once the respondent has provided a response to the grievance, the investigator contacts both the grievant and respondent, generally by telephone, and clarifies any questions regarding the grievance and/or the response. The investigator also reviews the case docket, pleadings and any other documents provided by the parties and then prepares written findings and recommendation to the full Investigative Subcommittee.
  38. 38. The investigation at this point is of a screening nature to determine if there is probable cause for the Grievance Committee to conduct a more thorough investigation. The Investigative Subcommittee will refer the matter to the Grievance Committee for further investigation or recommend the Grievance Committee dismiss the grievance, either outright or with a referral to Fee Arbitration.
  39. 39. If the matter is referred to the Grievance Committee for further investigation, Bar Counsel appoints a three member panel consisting of two attorneys and one lay person. The chair of the panel has received the certified grievance training from the Office of Disciplinary Counsel as required by Gov. Bar R. V so that he or she can represent the Bar Association before the Board of Professional Conduct if a complaint is filed. The panel conducts face to fact interviews of the grievant and the respondent with a court reporter present. The panel also might collect additional information and documentation and interview other parties as it deems appropriate.
  40. 40. The panel will prepare written findings and recommendations to the full Grievance Committee. If the panel believes that there is substantial credible evidence of misconduct and that the Bar Association will be able to meet the burden of proof of clear and convincing evidence, it will recommend filing a complaint against the respondent with the Board of Professional Conduct. Otherwise, the panel will recommend dismissal, either outright or with referral to Fee Arbitration.
  41. 41. If the Grievance Committee votes to dismiss a grievance, either upon the recommendation of the Investigative Subcommittee or a panel, Bar Counsel prepares a dismissal letter with an appropriate explanation as to why the grievance was dismissed. A copy of the letter is sent to the respondent.
  42. 42. When the Bar Association dismisses a grievance, the grievant is informed of his or her right to have that decision reviewed by sending a request to the Board of Professional Conduct. The Board then will ask the Office of Disciplinary Counsel (or if Disciplinary Counsel has a conflict, another certified grievance committee) to review the file in its entirety, including the findings of the Investigative Subcommittee and/or the Grievance Committee. The standard for this review is abuse of discretion or error of law.
  43. 43. If the Grievance Committee votes to file a complaint, the chair of the panel and Bar Counsel work together to draft the complaint. Bar Counsel sends respondent a Notice of Intent to File along with a copy of the complaint and advises the respondent that he or she has at least 14 days from receipt of the Notice to provide a response to the complaint as drafted. Bar Counsel and the panel chair review respondent’s response, if any, and may revise the complaint accordingly.
  44. 44. If significant changes are made to the complaint, another Notice of Intent to File is sent to respondent along with a copy of the revised complaint. Once Bar Counsel and the panel chair are satisfied with the complaint, it is submitted to the Board of Professional Conduct along with a Summary of Investigation (exhibits including the grievance, the response, transcripts of the interviews, dockets, pleadings and other documents and information supporting the allegations contained in the complaint). If respondent has waived determination of probable cause, then the Summary of Investigation is omitted.
  45. 45. A three member Probable Cause Panel reviews the complaint and summary of investigation. The Probable Cause Panel may certify the complaint in its entirety, dismiss it in its entirety or dismiss it in part, in which case, the complaint is returned to the Bar Association to be revised accordingly. Up until the certification of the complaint by the Probable Cause Panel, all proceedings are confidential and only the respondent can waive that confidentiality. Once the complaint is filed with the Board of Professional Conduct, the matter becomes public record.
  46. 46. Unauthorized Practice of Law: A bar to admission ? Jonathan Coughlan Coughlan Law Firm LLC 81 Mill Street Columbus, Ohio 43230 614-934-5677
  47. 47. Purpose of UPL Prohibition • “protect the public against incompetence, divided loyalties, and other attendant evils that are often associated with unskilled representation.” Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St.3d 168, 2004- Ohio-6506
  48. 48. For example -- • Kentucky lawyer • Properly licensed in Kentucky • Working on Kentucky legal matters • Only for Kentucky clients • At Ohio firm with Kentucky clients • From firm’s Cincinnati office • While living in Cincinnati UPL? This Photo by Unknown Author is licensed under CC BY
  49. 49. Or…. What about….. • Washington DC lawyer • Partner in DC Firm • Engaged in Federal Regulatory Practice • All large corporate clients • Working for 6 months from Mom’s house in Cleveland • Not working on any Ohio matters • Nor for any Ohio Corporations UPL?This Photo by Unknown Author is licensed under CC BY-ND
  50. 50. OR.. How about…. • Lawyer licensed in Texas & NY • Represents clients in both jurisdictions • On Tax matters – both state and federal • Wife takes a job in Toledo (M.D.) • Works on client matters from Toledo home • Travels to Texas office occasionally •UPL? This Photo by Unknown Author is licensed under CC BY
  51. 51. And, finally…… • Indiana Lawyer • Works out of Cincinnati law firm • On Indiana legal matters • For Indiana clients • Occasionally, assists Ohio licensed partner on Ohio matters under her supervision • Lives and works during the evenings in Ohio home This Photo by Unknown Author is licensed under CC BY-NC-ND
  52. 52. Rule 5.5 (b) • A lawyer not admitted in Ohio shall not: (1) Establish an office or other systematic and continuous presence in Ohio for the practice of law; (2) Hold out to the public or otherwise represent the lawyer is admitted to practice law in Ohio This Photo by Unknown Author is licensed under CC BY-SA
  53. 53. Rule 5.5 (c) • Lawyer duly licensed in another state may provide legal services on a temporary basis in this jurisdiction if one or the following apply: • In association with an Ohio lawyer who participates in the matter; • Reasonably related to proceeding before tribunal in Ohio or another state and if the lawyer, or the person lawyer is assisting, is authorized by law or order to appear or reasonably expects to be so authorized; • Related to pending/potential mediation, arbitration, ADR, in Ohio or another state, and services reasonably related to lawyer’s practice • Lawyer engages in negotiations, investigations, or other nonlitigation activities that are reasonably related to lawyer’s practice in home state • PHEW!
  54. 54. ALL of these possibilities are contingent on one requirement --- - TEMPORARY This Photo by Unknown Author is licensed under CC BY-SA
  55. 55. First question -- • Does representing out-of-state clients in non-Ohio matters from an Ohio location constitute practicing law in Ohio?This Photo by Unknown Author is licensed under CC BY
  56. 56. Gov. Bar R. VII §2 The rendering of legal services for another by any person not admitted to practice in Ohio is UPL This Photo by Unknown Author is licensed under CC BY-ND
  57. 57. So, in Ohio… The answer to the question is YES -- it is UPL for an licensed out-of-state lawyer to work on their home jurisdiction matters while physically in Ohio… This Photo by Unknown Author is licensed under CC BY
  58. 58. And, there are a series of exceptions to Gov. Bar Rule VII § 2….. The relevant one here is Rule 5.5 This Photo by Unknown Author is licensed under CC BY-NC-ND
  59. 59. Brings us back to 5.5 (c) • Lawyer duly licensed in another state may provide legal services on a temporary basis in this jurisdiction if one or the following apply: • In association with an Ohio lawyer who participates in the matter; • Reasonably related to a proceeding before a tribunal in Ohio or another state and if the lawyer, or the person lawyer is assisting, is authorized by law or order to appear or reasonably expects to be so authorized; • Related to pending/potential mediation, arbitration, ADR, in Ohio or another state, and services reasonably related to lawyer’s practice • Lawyer engages in negotiations, investigations, or other nonlitigation activities that are reasonably related to lawyer’s practice in home state
  60. 60. Specific cases – In re Egan • Egan worked at Cincy law firm from 2002 – 2013 • Limited her practice to Kentucky matters • 2008 – applied for admission on motion • Denied – did not have 5 years practicing in another jurisdiction • 2015 – applied to take 2016 Ohio bar exam
  61. 61. In re Egan • Lawyer testified she had no idea she might be engaged in UPL until she met with counsel to assist with her application • And the Cincy bar association lawyers who interviewed her were equally unaware this might be an issue so they approved her application • C & F board found that lawyer had engaged in UPL – rec’d admission be denied • Noting that the “temporary” exception in 5.5(c) did not apply, the Court found she engaged in UPL
  62. 62. Due to exemplary character and professional reputation She was allowed to sit for the Feb. 2018 exam
  63. 63. So, had to wait from 2015 until Feb 2018 • Not because she engaged in some questionable conduct in a single legal matter • Not because she represented an Ohio client when she wasn’t licensed in Ohio • Not because she had some legitimate character issues – truthfulness, or reliability or trustworthiness • Not because she had a substance issue • NOPE – just because her office was located in Cincinnati
  64. 64. Another case – Texas/NY Tax Lawyer • 2014 --Moved to Toledo because of wife’s new position • Continuing to represent clients in Texas & NY • 2016 -- Decided to offer Tax Clinic at Law School • 2016 Sought admission on motion to Ohio bar • Had requisite 5 years in another jurisdiction • BUT what was the one difference between his circumstances and Egan’s?This Photo by Unknown Author is licensed under CC BY-NC-ND
  65. 65. Rule 5.5 (b) • A lawyer not admitted in Ohio shall not – establish an office to other systematic and continuous presence in Ohio for the practice of law This Photo by Unknown Author is licensed under CC BY-SA-NC
  66. 66. His actions violated the “Boots on the ground” rule just as much as Egan’s BOTH represented clients from their home jurisdiction & both did so from an Ohio location This Photo by Unknown Author is licensed under CC BY-NC
  67. 67. Latest case … Alice A. Jones 2009 --Licensed in Kentucky 2009- 2015 Worked in Kentucky 2/2015 – her firm was acquired by Dinsmore 10/2015 – applied to take Ohio bar 11/2015 – moved to Cincy, worked in Cincy office ONLY worked on Kentucky matters for Kentucky clients Cincy Bar Association approved her application
  68. 68. Alice A. Jones 05/2016 – C & F requested supplemental affidavit 11/2016 – C & F hearing panel appointed 04/2017 – C & F hearing held 08/2017 – Admission denied, order confirmed only issue was her physical presence in Ohio, requested an affidavit saying – ceasing practice in Ohio and only engaging in services of a paralegal. Jones refused to abandon Kentucky clients and submit an affidavit with a faulty premise (that she did not fit under 5.5 (c))
  69. 69. And since C & F order in Aug. 2017 04/2018 – Supreme Court issued show cause order 07/2018 – Case argued to Supreme Court Since 2015 Jones has – Worked exclusively on Kentucky matters Traveled to Kentucky to work on client matters Maintained Dinsmore’s Kentucky address and phone #, business cards & professional profile on firm’s website
  70. 70. Jones’ argument – in compliance with 5.5 (c) Lawyer duly licensed in another state may provide legal services on a temporary basis in this jurisdiction if: Reasonably related to proceeding before a tribunal in Ohio or another state and if the lawyer, or the person lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
  71. 71. Temporary because her application has been pending this whole time…. This Photo by Unknown Author is licensed under CC BY-SA-NC
  72. 72. So, which is it? • Is she an out-of-state lawyer who established an office with a systematic and continuous presence in Ohio for the practice of law? OR • Is she temporarily providing services related to pending or potential proceedings before a tribunal in another jurisdiction where the lawyer is authorized to appear?
  73. 73. The End Jonathan E. Coughlan Coughlan Law Firm LLC 81 Mill St. Suite 300 Columbus, Ohio 43230 614-934-5677
  74. 74. SWITCHING Law Firms: Walking the Tight Rope Presented by Chris Weber
  75. 75. Opinion 99-414
  76. 76. RPC 5.6 No restrictive covenants
  77. 77. Permissible Planning ACTIONS Obtain office space, supplies, equipment Financing Prepare list of clients expected to leave the firm Inform clients
  78. 78. WHOto Notify
  79. 79. RPC 1.4 Inform clients
  80. 80. RPC 7.3a In person/phone/real time electronic
  81. 81. Ohio’s GUIDE Clients with whom lawyer had “significant personal contacts” “Determined from prospective of client” “Who at firm represents you”
  82. 82. Fred Siegel CASE
  83. 83. Buckingham CASE
  84. 84. WHENto Notify
  85. 85. HOWto Notify
  86. 86. Joint Letter from law firm and departing lawyer
  87. 87. Date of departure Status of matter Whom to contact for file transfer Client options Fee on deposit Address A/R
  88. 88. No Joint Letter? Separate letter – RPC 1.4
  89. 89. Don’t disparage Cover same contents Don’t encourage clients to sever ties with the firm
  90. 90. Client FILE Cooperate with transfer Bear expense to copy Don’t hold hostage
  91. 91. RPC 1.5 Fees
  92. 92. Firm DON’Ts Don’t disparage Don’t restrict access to records Don’t refuse to provide new contact info DO monitor departing lawyer’s emails
  93. 93. Lawyer DON’Ts Don’t take client lists Don’t take firm property/records Don’t take firm’s financial data
  94. 94. ODC v. Robinson CASE
  95. 95. Cleve. Bar v. Azman CASE
  96. 96. Additional Client Considerations Confidentiality Change of Counsel Refund Unearned Fees
  97. 97. RPC 1.6 Disclosure for conflict purposes
  98. 98. SIDESwitching
  99. 99. RPC 1.10
  100. 100. Chris Weber Kegler Brown Hill + Ritter cweber@keglerbrown.com keglerbrown.com/weber 614-462-5415
  101. 101. Presented by Jason Beehler
  102. 102. WHOis the client?
  103. 103. Is there a
  104. 104. Roger Don Bert Pete Share
  105. 105. Upon death or dissolution of a Member, the other Members shall have the option to purchase; if the other Members exercise such option to purchase, then the affected Member or the personal representative of the estate of the deceased Member shall sell all of the Company Units owned by the Seller. The Purchaser shall exercise such option, if at all, by written notice of exercise delivered to the Seller within one hundred eighty (180) days after the occurrence of the Triggering Event. The purchase price and terms of payment for such purchase shall be as provided in Sections 10.5, 10.6, and 10.7 below.
  106. 106. RPC 1.7 Conflicts A lawyer’s acceptance or continuation of representation of a client creates a conflict of interest if either: Representation of client will be directly adverse to another current client; OR There’s substantial risk the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by lawyer’s responsibilities to another client, a former client, a third person or by the lawyer’s own personal interests
  107. 107. CRITICAL Questions Difference in interests between the client and lawyer or between two clients exists or is likely to arise? Whether this difference in interests will materially interfere with the lawyer’s independent professional judgment?
  108. 108. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  109. 109. RPC 1.7 Conflicts Even if clients consent, can’t accept representation if either: Prohibited by law; OR One client will be asserting a claim against another in the same proceeding
  110. 110. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  111. 111. Will the check clear? ACCEPT representation REJECT representation
  112. 112. Competent + diligent representation to each client Legal knowledge, skills, thoroughness, prep Dedication to client interests Ability to “see it through” to conclusion
  113. 113. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  114. 114. Informed consent confirmed in writing Aware of relevant circumstances Reasonably foreseeable adverse effects of conflict Highly fact specific
  115. 115. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  116. 116. Not prohibited by division (c) Is it prohibited by law? Is one party asserting claim against another? Usually arises in litigation, not transactional
  117. 117. Is there a
  118. 118. RPC 1.7 Conflicts Depending on the circumstances, a material limitation conflict may be present
  119. 119. CRITICAL Questions Difference in interests between the client and lawyer or between two clients exists or is likely to arise? Whether this difference in interests will materially interfere with the lawyer’s independent professional judgment?
  120. 120. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  121. 121. IMPORTANCE of an Engagement Letter “We understand that our clients are Don Draper, Bertram Cooper, Roger Sterling + Pete Campbell”
  122. 122. Define scope Avoid “Re: Legal Representation” Define what you’re doing Define what you’re NOT doing
  123. 123. RPC 1.7 Conflicts Whether the lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of division (b)
  124. 124. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  125. 125. RPC 1.7 Conflicts The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails
  126. 126. Sophisticated client Particular type of conflict With which the client is already familiar
  127. 127. Unsophisticated client General/open-ended waiver Limited explanation
  128. 128. RPC 1.7 Conflicts A lawyer cannot represent multiple parties to a negotiation whose interests are fundamentally antagonistic, regardless of their consent
  129. 129. Are they
  130. 130. How would you tell
  131. 131. Sophisticated client(s) Agree on key terms All over but the drafting
  132. 132. Problem
  133. 133. RPC 4.2 Represented Person A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order
  134. 134. YOU Don, just send me an email while we’re on the phone, confirming that it’s okay we proceed without your lawyer.
  135. 135. RPC 4.2 Represented Person A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order
  136. 136. RPC 1.7 Conflicts The rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this rule
  137. 137. Can you discuss with in-house counsel
  138. 138. RPC 4.2 Represented Person A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order
  139. 139. From: Other party’s lawyer To: Other party cc: You Subject: Why we will destroy the other side Dear So-and-so: The other party is weak, but they will get weaker. Their Board is starting to revolt. We will have a huge opportunity to buy for pennies if we wait two weeks. I would recommend cooling negotiations for now. Let’s move when they start to circle the drain. Sincerely, Other party’s lawyer
  140. 140. RPC 4.4Respect for Third Parties A lawyer who receives a document or ESI relating to the representation of the lawyer’s client and knows or reasonably should know that the document or ESI was inadvertently sent shall promptly notify the sender
  141. 141. From: Other party’s lawyer To: Other party cc: You Subject: Why we will destroy the other side ATTORNEY CLIENT PRIVILEGED COMMUNICATION Dear So-and-so: The other party is weak, but they will get weaker. Their Board is starting to revolt. We will have a huge opportunity to buy for pennies if we wait two weeks. I would recommend cooling negotiations for now. Let’s move when they start to circle the drain. Sincerely, Other party’s lawyer
  142. 142. Do you have to stop reading?
  143. 143. Do you have to delete it?
  144. 144. RPC 4.4Respect for Third Parties Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete ESI is a matter of professional judgment ordinarily reserved to the lawyer
  145. 145. From: Me To: Other party Subject: Inadvertent communication Dear Other party’s lawyer: This morning you inadvertently copied me on what appeared to be a privileged communication with your client. As soon as I realized what it was, I stopped reading it and permanently deleted all copies from all of my electronic mailboxes. If the communication was intended for me, please re-send it. Sincerely, Me
  146. 146. CLIENT (seller) We would be willing to have some of the deal money paid by way of an earnout provision.
  147. 147. YOU Paying some of the purchase price through an earnout is a non- starter.
  148. 148. Problem
  149. 149. RPC 4.1 Truthfulness In the course of representing a client, a lawyer shall not knowingly do either of the following: Make a false statement of material fact or law to a third person Fail to disclose a material fact when disclosure is necessary to avoid assisting in an illegal or fraudulent act by a client
  150. 150. YOU I don’t think an earnout is going to work.
  151. 151. YOU Earnouts come with all kinds of problems on the back end that I want to avoid for my client. Try again.
  152. 152. CLIENT (CFO) Find us tax savings. We’ll pay you 30% of whatever you save us.
  153. 153. Fee issue
  154. 154. RPC 1.5 Fees + Expenses A fee may be contingent on the outcome of the matter for which the service is rendered: Shall be in writing signed by client + lawyer, explain terms Lawyer must prepare closing statement
  155. 155. RPC 1.5 Fees + Expenses A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. To determine if reasonable: Time and labor, difficulty, skills required Amount involved, results obtained, experience of lawyer, etc.
  156. 156. YOU We spent three hours and found one (lawful) change that will save you $3 million.
  157. 157. YOU Please make our $990,000 check out to Kegler Brown Hill + Ritter, LPA.
  158. 158. Excessive
  159. 159. RPC 1.5 Fees + Expenses A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. To determine if reasonable: Time and labor, difficulty, skills required Amount involved, results obtained, experience of lawyer, etc.
  160. 160. CLIENT (CFO) Find us tax savings. We’ll pay you 5% of whatever you save us.
  161. 161. YOU We spent 40 hours ($12k of billable hours) and found one change that will save you $1 million.
  162. 162. YOU Please make our $50,000 check out to Kegler Brown Hill + Ritter, LPA.
  163. 163. Excessive
  164. 164. RPC 1.5 Fees + Expenses A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. To determine if reasonable: Time and labor, difficulty, skills required Amount involved, results obtained, experience of lawyer, etc.
  165. 165. Real estate deal
  166. 166. Real estate deal Opposing counsel sends it back No redlines “Looks good. Thanks.”
  167. 167. Problem
  168. 168. RPC 3.4Fairness to opposing counsel This is all about litigation – no faking evidence, concealing evidence, disobeying the court, etc.
  169. 169. RPC 4.1 Truthfulness In the course of representing a client, a lawyer shall not knowingly do either of the following: Make a false statement of material fact or law to a third person Fail to disclose a material fact when disclosure is necessary to avoid assisting in an illegal or fraudulent act by a client
  170. 170. RPC 4.1 Truthfulness [1] A lawyer is required to be truthful when dealing with others on a client’s behalf.
  171. 171. RPC 4.1 Misconduct It is professional misconduct for a lawyer to do any of the following: (c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
  172. 172. Jason H. Beehler Kegler Brown Hill + Ritter jbeehler@keglerbrown.com keglerbrown.com/beehler 614-462-5452

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