On Friday, October 13, 2017, attorneys from Kegler Brown’s Professional Responsibility practice area held the 20th Annual Professional Responsibility Seminar.

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Presented by Jonathan E. Coughlan
October 13, 2017
Recent Ethics
OPINIONS

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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…

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Do you have any duty to investigate and
see whether what you learned about the
overbilling was true?
1. Yes
2. No
3. Don’t Know – That’s what my
managing partner is for

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Do you tell the client?
1. Yes
2. No
3. Hope it’s not my decision
to make

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Assume you do tell the client. Do you report
the lawyer for engaging in misconduct?
1. Yes
2. No
3. How should I know – let the
firm’s managing partner figure
that one out

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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

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Is it privileged knowledge?
1. Yes
2. No

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Do you have knowledge?
1. Yes
2. No

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

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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?
1. Yes
2. No
3. Depends

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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?
1. Yes
2. No
3. Not my problem

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Do you have to report this to
disciplinary authorities?
1. Yes
2. No

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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

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So is it privileged?
1. Yes
2. No

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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

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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

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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

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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

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

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

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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

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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

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

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What about a witness that
testifies to a felony?
1. Yes
2. No

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Does a judge have to recuse from a case if
the judge has reported one of the lawyers to
disciplinary authorities?
1. Of course
2. Nope
3. Good question

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Lawyer Advertising

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What about lawyer advertising saying
“There is no charge unless we win your
case” or “No fee without recovery”?
1. That’s fine – I see it all
the time
2. Depends

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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

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Is it proper for a lawyer to advertise legal
services by sending unsolicited emails?
1. Absolutely
2. Maybe but…
3. No
4. Why would anyone want to?

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

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

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OPINION
2017-05
Issued June 9, 2017
Virtual Law Office

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What is a
Virtual Law
Office?

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“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

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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

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

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Presented by Chris Weber
October 13, 2017

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Engagement Letter
TIPS

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Identify Client1

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Exclude affiliates?

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Define Scope2

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

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

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Gentle Termination Letter

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Dual Representation3

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Someone Other Than Client Pays4

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RPC 1.8(f)(4)
Statement of Insured’s Rights

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Evergreen Retainer5

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Flat Fees6

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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

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Advance Waivers7

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Sharing Fees
Not in Same Firm

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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

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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

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Properly
DECLINING
Representation

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

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Additional Tips

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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

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How to
COMMUNICATE

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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

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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

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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

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Chris Weber
Kegler Brown Hill + Ritter
cweber@keglerbrown.com
keglerbrown.com/weber
614-462-5415