On Wednesday, April 4, 2018, Jason Beehler, and Jon Coughlan of Kegler Brown's Professional Responsibility practice area presented alongside panelists Alvin Mathews, Partner, James E. Arnold & Associates, LPA and Don Scheetz, Assistant Disciplinary Counsel, Office of Disciplinary Counsel for the Supreme Court of Ohio at Capital Law School for their Professionalism Week.

1. z
Presented by Jonathan E. Coughlan
April 4, 2018
REPORTING
MISCONDUCT
of Other Lawyers
+ Other Fun
Ethical Problems

2. z
Lawyer possessing unprivileged knowledge of
a violation of these rules that raises a
question as to any lawyer’s honesty,
trustworthiness, or fitness as a lawyer, shall
inform a disciplinary authority
RULE 8.3
Duty To Report
Reporting judges
Information regarding substance abuse
and mental health issues shall be
privileged

3. z
This rule applies to when you must report
It has nothing to do with
whether you may report
Assuming the information is not privileged,
it is always possible to report
RULE 8.3
Duty To Report

4. z
OPINION
2007-1
So how do we determine when it
raises a question as to a lawyer’s
honesty, trustworthiness, or fitness ?
Each of us must use our professional
judgment in determining whether
misconduct raises a question as to a
lawyer’s honesty, trustworthiness, or
fitness as a lawyer

5. z
What Is
“Unprivileged Knowledge?”
Most other states prohibit reporting information learned
during the representation – confidential info (1.6)
Don’t forget, you can always ask your client to waive
the privilege so you can report the misconduct
Privilege refers to the “attorney/client privilege”
This is an evidentiary concept

6. z
How Do You Know When
You Have “Knowledge”?
Rule 1.0 tells us “A person’s knowledge may be inferred
from the circumstances”
Is this a subjective or objective determination?
According to Board Opinion 2007-1, mere suspicion is not
enough, actual knowledge is required

7. z
Reporting
MISCONDUCT
You agree to meet with former
law partner for a glass of wine
after work one day
And she tells you very
upsetting news…

8. z
Do you have any duty to investigate and
see whether what you learned about the
overbilling was true?
Yes No

9. z
Do you tell the client?
Yes No

10. z
Assume you do tell the client. Do you report
the lawyer for engaging in misconduct?
Yes No

11. z
Rule
8.3
Possess unprivileged knowledge
Of a violation of the Rules
That raises a question about
The lawyer’s honesty, trustworthiness
or fitness as a lawyer

12. z
Is it privileged knowledge?
Yes No

13. z
Do you have knowledge?
Yes No

14. z
Rule
1.0(g)
“Knows”/”known” denotes actual
knowledge of the fact in question
A person’s knowledge may be
inferred from the circumstances

15. z
Assume you had just heard your friend tell
you at the bar about what she had done. Do
you have knowledge at this point in time?
Yes No

16. z
Assume your former partner tells you she
overbilled a client at her new firm, but not any
clients at your firm while she was there. Do you
have any obligation to tell her new firm?
Yes No

17. z
Do you have to report this to
disciplinary authorities?
Yes No

18. z
Rule
8.3
Possess unprivileged knowledge
Of a violation of the Rules
That raises a question about
The lawyer’s honesty, trustworthiness
or fitness as a lawyer

19. z
So is it privileged?
Yes No

20. z
A lawyer shall not reveal information relating
to the representation of a client, including
attorney-client privileged information, unless
the client gives informed consent.
Relevant exception – permissible to disclose
in order to prevent commission of a crime
Rule
1.6

21. z
OPINION
2016-02
Question is whether the information
acquired from the client regarding
their prior lawyer’s conduct is
privileged, thereby eliminating any
duty to report under Rule 8.3

22. z
OPINION
2016-02
Prohibited from revealing
information related to representation
without client consent
But Rule 8.3 requires disclosure to
disciplinary authorities of all information
that is not privileged

23. z
OPINION
2016-02
Even if confidential under 1.6, if the
information is not privileged then it’s
permissible to report the misconduct
If privileged, lawyer must obtain client
consent to reveal by reporting to
disciplinary authorities

24. z
Does the conduct raise a question about
the lawyer’s honesty, trustworthiness
or fitness to practice?
Yes No

25. z
Reporting
MISCONDUCT
Assuming you have unprivileged
knowledge that raises a question
about another lawyer’s honesty,
trustworthiness or fitness…
Just when is it that you are
supposed to report the
misconduct ?

26. z
“Reporting
Misconduct”
Case
In re Riehlmann, 891
So.2d 1239 (2005)
Prosecutor bares
his soul

27. z
In Riehlmann the lawyer did actually report
the misconduct, only he learned of it in 1994
and first disclosed it in 1999
RULE 8.3
Duty To Report
So, is this a violation of 8.3?
Harm because of the delay?

28. z
The Louisiana Supreme Court held
that “absent special circumstances,
a lawyer must report his knowledge
of misconduct promptly.”

29. z
NY City Bar Ethics Opinion 90-3
While limited circumstances might justify
postponing a report for a brief time, “once a
lawyer decides that he or she mist disclose
under DR 1-103(A), any substantial delay in in
reporting would be improper.”

30. z
Unique Ohio Reporting Features
Only “privileged knowledge” is shielded from
mandatory disclosure rather than any and all
information learned during the representation
(Rule 1.6), “Question” not “substantial
question”, Self-reporting required

31. z
OPINION
2017-02
Issued February 10, 2017
Withdraws Opinion 89-32

32. z
Jud.Cond.R.
2.15(A)
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

33. z
Jud.Cond.R.
2.15(B)
A judge who has knowledge of a
lawyer’s violation of the Rules of
Professional Conduct conduct
that raises a question regarding
the lawyer’s honesty,
trustworthiness, or fitness as a
lawyer has an ethical duty to
report it

34. z
Do judges have a duty report a witness who
testifies to possession of marijuana?
Yes No

35. z
What about a witness that
testifies to a felony?
Yes No

36. z
Does a judge have to recuse from a case if
the judge has reported one of the lawyers to
disciplinary authorities?
Yes No

37. z
Lawyer Advertising

38. z
What about lawyer advertising saying
“There is no charge unless we win your
case” or “No fee without recovery”?
Yes No

39. z
OPINION
2017-01
Prohibited if the lawyer will be
seeking payment of fees/costs at any
time unless the lawyer uses a
disclaimer that clearly indicates the
client will be responsible for the
expenses and costs

40. z

41. z
Is it proper for a lawyer to advertise legal
services by sending unsolicited emails?
Yes No

42. z
OPINION
2017-03
Issued April 7, 2017
Update + Withdrawal of 2004-1
Solicitation of Professional
Employment via Email

43. z
OPINION
2017-03
Disclose accurately + fully
Refrain from expressing
predetermined evaluation
Conspicuously include disclaimer

44. z
OPINION
2017-05
Issued June 9, 2017
Virtual Law Office

45. z
What is a
Virtual Law
Office?

46. z

47. z
“Reasonable efforts” can be determined
through the analysis of several nonexclusive
Op. 2017-5 factors including:
sensitivity of the information
likelihood of disclosure if additional safeguards are not employed
cost of employing additional safeguards
difficulty of implementing the safeguards
extent to which safeguards adversely affect lawyer’s
ability to represent clients

48. z

49. z
1
Determine that the vendor understands and agrees
to maintain and secure stored data consistent with
the lawyer’s duty of confidentiality
2 Ensure that client files and data will be maintained
and regularly backed up
3
Require that the vendor give the lawyer notice of
subpoenas for client data, nonauthorized access to
the stored data, or other breach of security, and a
reliable means of retrieving the data if the agreement
is terminated or the vendor goes out of business

50. z
Jonathan E. Coughlan
Kegler Brown Hill + Ritter
jcoughlan@keglerbrown.com
keglerbrown.com/coughlan
614-462-5455

51. KNOWN
Unknowns
Presented by Jason Beehler
April 4, 2018

52. Jason Beehler
Kegler Brown Hill + Ritter
jbeehler@keglerbrown.com
keglerbrown.com/beehler
614-462-5452

53. z
Ethics
PANEL
Of Counsel
Fee Agreements
Trust Accounts
Withdrawing
Advertising
Conflicts
Confidentiality

54. z
Of Counsel Issues

55. z

56. z

57. z
Identify Client1

58. z
Define Scope2

59. z
Define exactly what asked to
do, avoid using
“Re: Legal Representation”

60. z
Benefits to
Avoid blame
for unrelated
matters
Defines when
representation
ends
Easier to be
adverse to a
former client

61. z
Gentle Termination Letter

62. z
Dual Representation3

63. z
Someone Other Than Client Pays4

64. z
Evergreen Retainer5

65. z
Flat Fees6

66. z
Other Considerations
Flat fee – RPC 1.5(d)(3)
Add language – may
be entitled to refund
Refund if early
termination
ODC v. Summers
2012-Ohio-1144
Where does $$ go?
“Earned upon receipt”
Operating account

67. z
Advance Waivers7

68. z
Rule 1.15
Trust Accounts

69. z
Sharing Fees
Not in Same Firm

70. z
Rule 1.5(e) Permissible if:
Division in proportion to
services performed by each
Each lawyer assumes joint
responsibility for matter/available
Includes joint/severable
liability for malpractice
Client consent: identify each
lawyer and division of fees

71. z
Doing Business
with Clients
Rule 1.8(a) – explain in writing
Terms, risks/disadvantages
to client
Reasonable alternatives
Lawyer’s role
Advisable to consult with
another lawyer

72. z
Properly
DECLINING
Representation

73. z
Prospective clients
RPC 1.18: Communications
are confidential
Confirmation in writing
unable to take
Consider whether to inform
of applicable S/L

74. z
Additional Tips

75. z
Key Areas to
COMMUNICATE
When seeking conflict waiver
Settle/appeal
Client objectives
Means to accomplish goal
(litigation tactics)
Updating on status
When client requests
information

76. z
How to
COMMUNICATE

77. z
How to
RPC 1.16
Client engages in illegal/
fraudulent conduct
Client insists upon action
lawyer considers “repugnant”
Or which lawyer has
“fundamental disagreement”
WITHDRAW

78. z
Client fails to fulfill obligation
financial or otherwise
Lack of payment
Lack of communication
Warn that will withdraw
unless obligation met
“Unreasonable financial
burden” on lawyer
Representation rendered
“unreasonably difficult”
“Other good cause”
Grounds to
WITHDRAW

79. z
Withdrawal Considerations
Minimize risk to client
Notice/opportunity to retain new counsel
Cooperate with transition
Refund earned fees
Litigation: permission from court
Careful with client confidences
Submit motion in camera

80. z
New Rule 1.6(b)
Exception
1.6 (b)(7): To detect and resolve conflicts of
interest arising from the lawyer’s change of
employment or from changes in the
composition or ownership of a firm, but only
if the revealed information would not
compromise the attorney-client privilege or
otherwise prejudice the client

81. z
New Rule 1.6
Requirement
(c): A lawyer shall make reasonable efforts to
prevent the inadvertent or unauthorized
disclosure or unauthorized disclosure of or
unauthorized access to information related to
the representation of a client

82. z
Rule 1.18
Duties to Prospective Clients
Rule 1.18 is consistent with current Ohio law: the
lawyer-client relationship may be created by
implication based upon the conduct of the parties
and the reasonable expectations of the person
seeking representation. See Cuyahoga County Bar
Ass’n v. Hardiman (2003), 100 Ohio St. 3d 260

83. z
Rule 1.18
New Comment 2
Consultation does not occur if a person
provides information to a lawyer in response
to advertising that merely describes the
lawyer’s education, experience, areas of
practice and contact information

84. z
Rule 4.4
Respect for Right of 3rd Persons
A lawyer who receives a document or electronically
stored information relating to representation of
lawyer’s client and knows or reasonably should
know that the document or electronically stored
information was inadvertently sent shall promptly
notify the sender

85. z
Comment to Rule 4.4
Electronically stored information
includes…electronic documents,
electronic communications, including
metadata
1
Metadata only creates an obligation
under this rule if the receiving lawyer
knows or reasonably should know
that the metadata was sent
inadvertently to the receiving lawyer
2

86. z
Rule 5.1
Responsibilities of
Supervisory Lawyers

87. z
New Comment to Rule 5.3
In addition to responsibility for non-lawyer
assistants who work for you, attorneys are
now required to be responsible for non-
lawyers outside the firm or agency who
work on firm or agency matters;
1
Required to ensure such independent
contractors act in a way compatible with
professional obligations of lawyer;
2
Such assistants must be given appropriate
instruction/supervision concerning the
ethical aspects, particularly regarding
confidentiality, and the lawyer should be
responsible for their work product
3

88. z
Rule 5.5
Unauthorized Practice of Law;
Multijurisdictional Practice of Law
Rules 5.5 (b), (c), and (d) describe when a lawyer
who is not admitted in Ohio may engage in
activities considered the practice of law in the state

89. z
Rule 5.5 New Restrictions
Non-Ohio Lawyer who sets up an office
or other systematic and continuous
presence in Ohio violates this rule
Presence may be “systematic and
continuous” even if the lawyer is not
physically present in Ohio
“Advertising in media specifically targeted
to Ohio residents or initiating contact with
Ohio residents for solicitation purposes…”

90. z
Rule 7.2
Advertising + Recommendation
of Professional Employment
+ Not allowed to give anything of value to another
for recommending the lawyer’s services
+ BUT, can pay others for generating client leads,
including internet based client leads, provided the
lead generator does not recommend the lawyer,
any payment to the lead generator is consistent
with 1.5 and 5.4 and the lead generator’s
communications are consistent with 7.1

91. z
No written or electronic
solicitation if:
Person made known a desire not be
solicited;
Solicitation involves coercion, duress, or
harassment;
Lawyer knows or reasonably should know that
person to whom communication is addressed
is a minor or incompetent or person’s
physical, emotional or mental state makes it
unlikely that the person could exercise
reasonable judgment in hiring a lawyer

92. z
Rule 7.3
Advertising
Advertisements are solicitations and
must comply with 7.3(c) –
1. disclose manner in which lawyer
learned of identity and specific legal
need of addressee
2. refrain from expressing evaluation of
merits
3. conspicuously include “advertisement
only/material”

93. z
Rule 7.3
Advertising
BUT communication is NOT a solicitation
if it is directed at general public –
billboard, internet based advertisement,
web site, a commercial, in response to
request for information, or automatically
generated in response to internet search

94. z
Can you list
settlement
amounts?

95. z
Conflicts Questions

96. z
Attorney/Client Privilege
Work Product
1.6 Confidentiality

97. z
A & B come in to hire lawyer because they were
injured in an automobile accident
(A-driver, B–passenger)
Initial interview – prospective clients, Rule 1.18 applies
So, confidentiality applies even if not retained
If not retained, unable to represent party with adverse
interest in the same or substantially related matter, if
rec’d harmful info…
Simple Legal
Representation

98. z
Lawyer proceeds to represent A & B,
works up case and ultimately submits demand
B comes in alone, says – being investigated by FBI for
insurance fraud – staged accident
B asks you not to tell A…. Joint defense agreement?
Each acknowledged that there are no secrets as
between them?
Now have conflicting duties as to two clients
Simple Legal
Representation

99. z
Two clients come in to set up an LLC
Agree to include provision guaranteeing
loans to the LLC
Separately one of the clients comes in and
says “I have bad credit, let’s leave this
provision out”
And please don’t tell my business partner
Transactional
Case

100. z
Can the lawyer
withdraw the
demand?

101. z
Rule 1.6 (b)(3)
“to mitigate substantial injury to the
financial interests or property of another
that resulted from the client’s
commission of an illegal or fraudulent
act, in furtherance of which the client has
used the lawyer’s services.”

102. z
RULES
to Consider

103. z
1.2(d) A lawyer
shall not…
assist a client, in conduct
that the lawyer knows is
illegal or fraudulent

104. z
4.1(b) A lawyer
shall not…
knowingly fail to disclose a
material fact when disclosure
is necessary to avoid assisting
an illegal or fraudulent act by
a client