Ohio Legal Ethics Course Outline

I. SOURCES OF OHIO ETHICS RULES A. Present Sources of Professional Responsibility 1. Code of Professional Resp. adopted in 1970 2. Code of Judicial Conduct adopted in 1973 a. Binding on all judicial officers including f-t & p-t judges & those exercising any judicial function such as a referee or special master b. Any willful breach of CJC may result in discipline by reprimand, suspension, probation or disbarment under Governance Rule V or by retiremt, reoval or suspension from office under Governance Rule VI 3. Supreme Court Rules for the Govt of the Bar B. Structure of the Code of Professional Responsibility 1. 3 parts: a. 9 Canons: statemts of axiomatic norms - broad, general concepts from which are derived more specific ethical considerations & disciplinary rules b. Ethical Considerations (EC) (1) Aspirational in character, representg objtves toward which members of profession should strive (2) May provide guidance in specific situations, usually do not (3) Violation of EC alone insufft basis for discipline, but some Ohio authority says otherwise c. Disciplinary Rules (DR) (1) Mandatory in char.; min. standard of conduct below which lawyer is s/to discipline (2) Usually not disciplined unless DR violated (3) More specific than Canons or Ethical Consideratns C. Disciplinary Enforcement Under the Code of Prof. Responsibilty 1. CPR no specific penalties or procedures for applying 2. Ohio Governance Rule V says investigatns by & hearings b/4 members of Board of Comm'rs on Grievances & Discipline 3. Penalties: a. Permanent Disbarment (forever) b. Indefinite Suspension (min. 2 yrs b/4 seek readmissn) c. Suspension for Specific Period (6 mos. to 2 yrs. per Ohio S.Ct., who can suspend any of that time) d. Public Reprimand (published in advance sheets) -> NO LONGER HAS A PRIVATE REPRIMAND -> Prior offenses are a factor for repeat offenders -> Could be criminal, civil, contempt actions as well II. OBLIGATIONS LAWYERS & JUDGES OWE TO PROFESSION AND SOCIETY A. Canon 1 - A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession 1. DR - Lawyer shall be disciplined if he's MADE a MATERIALLY FALSE STATEMENT in his applicatn to the Bar, or if he has DELIBERATELY FAILED TO DISCLOSE A MATERIAL FACT requested in connection w/ the application -> Punished for not disclosing or lying 2. DR - Lawyer shall not further the appicatn to the Bar of another person KNOWN to him to be unqualified w/ re: to char., educ., or any other relevant factor 3. DR - Lawyer shall not violate any discip. rule, nor circumvent a discip. rule thru another -> Can't have office employee face-to-face solicit 4. DR - Lawyer shall not engage in any conduct, WHETHER PROF. OR PERSONAL, which is illegal (crime) and involves moral turpitude; or is dishonest, obstructs justice; or adversely reflects on fitness to practice law a. Moral turpitude is baseness, vileness, depravity in obligatns we owe to 1 another in society b. Includes sex abuse, theft, fraud, willful failure to file tax return c. If convicted of felony, auto suspensin until disciplinary proceedings concluded 5. DR - Lawyer SHALL rept to disciplinary authority any clear violation of any disciplinary rule, provided not privileged, and SHALL reveal any unprivileged knowledge about another atty/judge to any ct or discipline authority ON REQUEST (except atty substance abuse commttee members) a. AFFIRMATIVE OBLIGATION to report! must come forward b. Does require clear knowledge not privileged B. Canon 2 - A Lawyer Should Assist the Legal Profession in Fulfilling its Duty to Make Legal Counsel Available 1. Ethical Considerations a. Ads aiding public access are allowed, s/to careful regulation to insure dignity & accuracy (1) Can't be false, fraudulent, misleading or deceptive (2) Can't solicit face to face (3) Can't give free advice & then accept reptn (4) Under 1st Am rts, can say anything in advertising, if not false/fraudulent/misleadg/deceptive b. Lawyer shouldn't use client testimonials in ads, or engage in telemarketing c. Lawyer shouldn't volunteer legal advice to a layman, IN PERSON, FOR THE PURPOSE OF SECURING EMPLOYMT, except relatives, close friends, regular & former clients d. Lawyer should seek adequate compensation for serv. but not charge an unreas. high fee e. Lawyer no obligatn to represent every person who wishes to become his client, but shouldn't lightly decline -> Not just b/c unpopular & if bar or ct asks, decline only for most compelling reasons 2. DR - Lawyer shall not communicate anything that's in whole or part false, fraudulent, misleading or deceptive a. False/misleading if (1) likely creates unjustified expectn about results lawyer can get; (2) states or implies lawyer can get results by means that violate the CPR or law; (3) or anything subjectively self- laudatory b. Otherwise, can use writing, printed mail material, targeted mailgs, radio, TV, movies (keep recorded copy) c. If advertised a fee, held to it stated time or 30 days for broadcast/newspapers, next issue for mags 3. DR - Lawyer can use letterhead & bus. cards & bus. cards can state that you are involved in certain types of practices & your practice is LIMITED TO certain areas 4. DR - Lawyer in private practice SHALL not practice under a trade name (inherently misleadg b/c doesn't list names) a. OK if legal aid or not-for-profit legal serv. office b. CAN use L.P.A. or Prof. Corporation though 5. DR - Lawyer shall not in person recommend himself, partner or assoc. for PRIVATE employmt to a lay person who has not sought his advice in retaining counsel a. PRIVATE employmt so legal aid could approach someone b. EXCEPTION: if relative, close friend, reg. or former client & conversation relates to the former reptn, or if approached after speech to gen'l audience c. Face to Face Solicitation Problems (1st Am issues) (1) Prohibitns on direct solicitatn upheld as meetg substant'l govt purpose of preventing undue influence, if narrowly tailored to that important purpose (on street, in hospital room) (2) Don't need across-the-board prohibition of things in writing (letters) b/c assumed there'll be copies around and ways to check if unduly influenced (vs. oral conversations where no record) (3) IS a diff. between atty commercial speech where test slightly less, and ideological speech where still strict (ACLU solicitg for test cases to readdress societal wrong) (4) For Bar: is it commercial or ideological speech? What's the form of communication? How intrusive? 6. DR - Lawyer in his ad even though true can't hold out himself out as a specialist (EXCEPT: patent, trademarks & admiralty) a. Might not technically be a lie, but misleading b. CAN advertise that you limit your cases to... 7. DR - Lawyer shall not charge, agree to charge, or collect a clearly excessive fee a. Factors Considered: (1) whether fixed or contingent fee (2) time, labor & skill required (3) likely preclusion of other e/mt (4) custmary fees for similar serv. in locale (5) amt involved (6) result obtained (7) former relationship w/ client (8) atty reputatn, exper., skill 8. DR - Lawyer shall not charge, agree to charge or collect a contingent fee in a criminal case a. Creates too much pressure for atty to bend the law b. Also prohibited in matrimonial cases (by EC) -> Contingent in collection of child support OK 9. DR - Lawyer shall not divide or split a fee for legal serv. w/ another atty not his partner or associate a. CAN split w/ firm members; not outside atty b. CAN split w/ outside atty if: (1) client consents, total fee to client not unreas., fee reflects % serv. performed OR (2) client agrees in writing for outsider to also assume resp. in the case (even if does no work), and total fee is reas. 10. DR - Lawyer shall not w/draw from e/mt w/o taking reas. steps to avoid harm to his client, including giving notice, allowing time to get other counsel & returning file a. Client can fire at will (fee for serv. to date) b. Attempted Withdraw MANDATORY: (1) if lawyer knows or obvious client bring case or assertg position to harass or maliciously injure (2) knows or obvious cont'd e/mt will result in violation of a DR (3) if his mental/ physical condtn makes it unreas. difficult to carry out his employment c. Attempted Withdraw PERMISSIVE: (1) client insists on assertg position not warranted under existg law/argumt (2) seeks to pursue conduct course illegal or prohibited by Rules (3) conduct makes it unreas. difficult for atty to effectvly perform (4) wants to do conduct contrary to atty's judgment & advice (5) client deliberately disregards obligatn to atty for expenses or fees C. Canon 3 - A Lawyer Should Assist in Preventing the Unauthorized Practice of Law 1. Ethical Considerations a. May delegate tasks to clerks, secretaries, etc. if atty maintains direct relationship w/ client & supervises & bears responsibility b. Layperson isn't practicing law when represents himself 2. DR - Lawyer shall not aid a non-lawyer in the unauthorized practice of law a. Can be in a partnership w/ lay person, but can't have any part of that bus. be to render legal advice and can't split those fees (have partnership refer to you) 3. DR - Lawyer shall not practice law in a Juris where to do so would be a violation of the regulations of the professn 4. DR - Lawyer or law firm shall not share legal fees with a non- lawyer a. EXCEPTIONS: (1) e/ee retirement plan, (2) fees to atty estate for reas. time, (3) fees to estate for wrapping up files in progress when died D. Canon 8 - Lawyer Should Assist in Improving the Legal System 1. Ethical Considerations a. When seeking legis. or administratv changes, lawyer should ID capacity in which he appears b. Can criticize system, but NOT judge unless true (sitting judge not wholly free to protect himself so gets protection from bar) 2. DR - If you hold public office you shouldn't confuse the obligations of public office w/ private reprsentation a. Legis. shouldn't take anything if knows to influence, even if NOT influenced b. Shouldn't use position to get any special adv. in legis. matters for yourself or client when not in public interest c. Use your public position to influence a court to act in your or your client's favor 3. DR - Lawyer shall not knowingly make false statements of fact concerning qualificatns of candidates for judicial election or knowingly make false accusations against a judge E. Canon 9 - Lawyer Should Avoid Even the Appearance of Professional Impropriety 1. Ethical Considerations a. Lawyer should always inform client of material developments in case 2. DR - Lawyer SHALL NOT ACCEPT private e/mt in a matter upon the MERITS of which he acted in a judicial capacity, or in a matter in which he had substant'l resp. while public e/ee a. Doesn't matter no REAL conflict -- it's the appearance 3. DR - Lawyer shall not state or imply he's able to influence improperly or on irrelevant grounds any tribunal, legis. body or public official (pettifoggery) a. If if you don't & didn't intend to seek favor, doesn't matter 4. DR - Lawyer shall ensure all funds of client deposited separately from funds of firm (no comingling; trust acct) a. Doesn't matter if client approved; appears bad & creditors could seize your acct b. EXCEPTIONS: litigation exp. & costs F. CJC Canon 1 - Judge Should Uphold the Integrity & Independence of the Judiciary G. CJC Canon 2 - Judge Should Avoid Impropriety and the Appearance of Impropriety 1. Like carrying concealed weapon; voluntarily testifying as a char. W in another case (incompetent as W in case b/4 him) H. CJC Canon 3 - Judge Should Perform the Duties of His Office Impartially & Diligently 1. No public comment on proceedings & encourage e/ees do same 2. Not communicate ex parte (atty also s/to discipline) 3. Permit electronic/photographic equip. if doesn't interfere w/ dignity or accuracy of proceedings BUT Victim or W who objects can't be shown & Jurors CAN NEVER BE SHOWN 4. Should disqualify himself if impartiality might reas. be Q'd or he/family has a financial interest I. CJC Canon 4 - Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice J. CJC Canon 5 - Judge Should Regulate his Extra-Jud'l Activities to Minimize the Risk of Conflict w/ His Judicial Duties 1. Can belong to and be listed as an officer/director/trustee of relig., charitable, fraternal, educ., civil organizatn 2. Can't be fundraiser or speak at fundraising event unless internal w/in the organization K. CJC Canon 6 - Judge Should Regularly File Financial Disclosure Statements Required by Statutes, and Repts of Compensatn Rec'd for Quasi-Judicial and Extra-Judicial Activities L. CJC Canon 7 - Judge Should Refrain from Political Activity Inappropriate to his Judicial Office 1. Can be on political party ticket but not hold office, endorse, be a leader or make speeches 2. Can't promise anything about his actions except to say will perform honestly & impartially M. Ohio Supreme Court Rules for the Govt of the Bar 1. Ohio S.Ct. has exclusive authority over lawyer discipline 2. Rule 1 - for admission to bar 21 & accredited school grad 3. Rule 2 - Limited Practice of Law by Legal Interns a. Can represent those qualifying for assistance by legal aid bureau, clinic, lw school or public organztn if supervision of atty; cert. after 2/3 hrs done; only civil & criminal misdemeanor (no felony juvenile cases) 4. Rule 3 - Legal Professn'l Ass'ns Authorized to Practice Law a. Authorizes corporate setup; no insulation in LPA from liability for malpractice 5. Rule 4 - Professional Responsibility & Judicial Ethics a. Apply to all attys in the state, including judges 6. Rule 5 - Disciplinary Procedure a. Board of 28 people (17 attys, 7 judges, 4 laypersons) b. Professionals elect a chair; hear cases in panel of 3 based on probable cause, make decision, rept to board, bd makes decision, repts to S.Ct., ultimate decision c. Ultimate decision is based on clear & convincg evidence of Rule violation 7. Rule 6 - Registration of Attys a. Must register & pay $100 to S.Ct. every 2 yrs; $15 to register for CLE b. $ to fund investigatns for Code violations c. Fail to register is unauthorzed prac.; public reprimand 8. Rule 7 - Unauthorized Practice of Law a. Bd of Comm'rs has 7 people who receive, investigate, hold hearings & make findings/recommendtns to S.Ct. 9. Rule 8 - Clients' Security Fund (use of registratn $ also) a. Clients harmed by dishonest (not neglig.) atty actions b. Bring w/in 1 yr later of time of punishmt or of the act c. $25,000 maximum recovery 10. Rule 10 - Continuing Legal Education a. 24 hrs every 2 years; 2 hrs in ethics & prof. resp. & 1/2 in substance abuse 11. Rule 11 if admitted in foreign juris & in good standg there 4 of past 6 yrs, may be allowed to register as Foreign Legal Consultant III. ETHICAL OBLIGATIONS LAWYERS OWE TO THEIR CLIENTS A. Canon 4-Lawyer Should Preserve Confidnces & Secrets of a Client 1. Ethical Considerations a. Client won't tell negative facts unless confidential; to make system work b. Confidences/secrets outlast the atty-client relatnship 2. DR - Lawyer shall not knowingly reveal a confidence or secret of client entrusted to him, NOR may the atty use the confidence or secret in any way AS TO HARM THE CLIENT even though not disclosing it, NOR MAY THE ATTY USE IT TO BENEFIT HIMSELF or a 3P THOUGH NOT DISCLOSING & NOT HARMING the client a. Can't buy up land around client's proposed mall b. Confidence: covered by atty-client evidentiry privilege -> If privileged, not only can you not disclose, but ct can't make you disclose it either -> If a secret/confidence and relevant to the case, obligation not to disclose unless ct makes you disclose it b/c not confidential c. Secret: other factual info atty finds out during prof'l relationship that doesn't fit atty-client privilege d. "Source" can make something be a secret or confidence e. NOTE: even if client later discloses confidentialities, info might still hurt client so you can't disclose f. Exceptions Where Confidence/Secret Can be Disclosed or Used: (1) Client consent after full disclosure of what consent means (2) If permitted by DR or required by law or court order (3) May disclose when necessary to prevent client from committing a crime; call victim or cops (4) May disclose info when necessary to defend yourself or assoc. against charge of wrongfulness or to collect a fee B. Canon 5 - Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client (conflicts of interest area) 1. Ethical Considerations a. Canon comes up where (1) client interests might conflict w/ pers. and/or fin'l interests of atty (2) role of atty as atty might conflict with potential role of atty as W (3) atty representing a client and another wants reptn or he represented them in past b. Atty for corp. or organization owes allegiance to the entity, not s/holdrs, directors, officers or employees c. Atty shouldn't have membership in organizatn of e/ees that attempts to direct how he fulfill his prof. duties 2. DR - Lawyer SHALL not accept employmt if the exercise of his indep. judgment on behalf of client will or reas. might be affected by his own finan'l, business, property or pers. interests EXCEPT the client can consent as long as fully informed a. Also can't have proprietary interest in client's litigation EXCEPT (1) lien w/o consent to secure fees or expenses is OK; or (2) K for reas. contingent fee in civil case b. Can't advance money to client, EXCEPT expenses of litigation provided client remains ultimately liable for them (1) Probably can say never b/4 sued client for expenses 3. DR - Lawyer shall not accept or continue e/mt when it would adversely affect his independent judgmt on behalf of client a. Associates & partners can't do it either b. Client consent DOESN'T necessarily mean you can take it c. Horizontal Conflict Multiple clients MAY be represented but ONLY if: (1) obvious atty can adequately represent the interests of each 1, and (2) each client consents after full disclosure d. Vertical Conflict (client wants you to rep. them in suit against former client) (1) Can't do it if s/matter substantially the same -> b/c got confidences & secrets can't reveal & can't rep. client2 zealously unless do reveal) 4. DR - If lawyer must decline or withdraw from employment on basis of 2. or 3. above, all members of firm must also withdraw from or reject employment 5. DR - Lawyer representing more than 1 client shall not settle a claim by or against his client w/o the informed consent of each, as to the total amt & amt for each 6. DR - Lawyer shall not ACCEPT e/mt w/ regard to contemplated or pending litigation when he knows/should know that he or another atty associated w/ him are to be called as a W in the case a. EXCEPTIONS (where can accept e/mt): (1) If the testimy will relate solely to uncontested or mere formality matter (2) If testimy relates solely to nature/value of legal serv. rendered (fees part of award) (3) If refusal of e/mt would work substant'l hardship on client b/c distinctive value of atty or firm in the case (very narrow; 1 admiralty firm in town) 7. DR - Lawyer who learns after undertaking e/mt that he or firm member shall be called as W on behalf of client, shall w/draw from conduct of trial as an atty. If the atty or firm member may be called as a W OTHER THAN ON BEHALF OF CLIENT, ordinarily reptn may continue unless the testimony would be prejudicial to the client a. If going to be called by other side, that's OK b/c can just claim privilege 8. DR - Lawyer shall not, absent informed consent of client, accept compensatn for serv. from anyone other than client, nor permit anyone other than client to control his actions C. Canon 6 - Lawyer Should Represent His Client Competently (loosely interpreted) 1. DR - Lawyer shall not handle matter knows/should know not competent to handle unless he associates himself w/ lawyer who is competent to handle it 2. DR - Lawyer shall not handle any legal matter even if competent in the area, w/o adequate preparation 3. DR - Atty shall not neglect a legal matter entrusted to him 4. DR - Lawyer shall not attempt to limit his liab. to client for his PERSONAL liability D. Canon 7 - Lawyer Should Represent Client Zealously Within Bounds of the Law (DRs tell what you CAN'T do to be zealous) 1. Ethical Considerations a. Shouldn't pay or offer to pay contingent fee to W or communicate extrajudicially w/ juror 2. DR - Can't assert a position unwarranted in law or designed only to harrass or maliciously injure the opponent a. Colorable claim under law sufft for Rule 11 is OK 3. DR - Lawyer shall not knowingly use false evid. or conceal that which law requires him to reveal (suboring perjury) a. ABSOLUTELY illegal under rules to put client on stand if know going to perjure himself & can't change his mind (making up an alibi) b. If client gives you "fruits" of crime, must turn them over to police (1) if keep you violate the rule (2) if don't take it to being w/ that's OK b/c govt in same position as b/4 (3) if take & turn in, can't reveal ID of client b/c that's a confidence 4. DR - Lawyer who learns client has, in course of reptn, perpetrated a fraud on a person or court, SHALL call on client to rectify & if refuses or unable to do so THE ATTY SHALL REVEAL THE FRAUD to the person or court a. Not the same as client telling you about a past crime b. Here, client now tells you after-the-fact lied on stand yesterday; you were unknowingly involved in perpetrating the offense (1) Conflict b/c what client told you is confidential, yet rule imports a duty to report (2) Since 1974 ABA Code has said in such case try to get client to report but atty doesn't have to (3) But Ohio has kept the 1969 version & never adopted the 1974 amendment. Put since Ohio knows it's there & chosen not to adopt, imply there is a duty to report here and 1991 caselaw supports such b/c atty suspended from practice 6 mos. b/c didn't reveal client, w/ atty's unknowing help, perpetrated fraud on court after atty found out 5. DR - Lawyer who learns of fraud on tribunal by 3P MUST report it 6. DR - Lawyer who acts in role of public prosecutor shall not (1) institute criminal charges absent probable cause (2) fail to disclose to D or atty evid. that tends to exculpate him, minimize the offense or mitigate the possible sentence 7. DR - Lawyer shall not communicate w/ person represented by counsel unless permitted by law or by consent of person's counsel (can approach prosecutor's Ws b/c not clients) 8. DR - Lawyer shall not threaten to present or actually present criminal charges solely to obtain an adv. in a civil matter 9. DR - Lawyer shall disclose to court (1) legal authority in controlling juris directly adverse to his position if not disclosed by opposing counsel and (2) ID of his client, unless privileged, and the persons who employ him a. Includes Common Pleas decisions from 2 difft counties b/c rule doesn't say controlling precedent, it says precedent in the controlling juris 10. DR - Lawyer shall not allude to any matter he has no reas. basis to believe is relevant or will not be supported by admissible evidence 11. DR - Lawyer not allowed to assert his personal opinion as to merits of the case or credibility of a W a. Fine line; can't explicitly say W lying but can act like conferring w/ client, etc. 12. DR - Lawyer shall not improperly communicate w/ a juror, his family, the judge or any other court personnel on substantive matter of a case 13. DR - Lawyer shall not suppress evidence he or client have obligatn to disclose or reveal, or advise or cause a W or potential W to hide or secret information, or pay any W a contingent fee a. Can pay for Ws expenses (travel, room, board) & if expert, a fee for time (NOT a contingent fee) 14. DR - Lawyer associated w/ any trial or proceedings, civil or criminal, juvenile, disciplinary or even an admstv proceeding or investigation is ordinarily not allowed to make statements to a representative of media (TV, radio, newspapers, magazines) that he could ordinarily expect would be disseminated publicly & that might interfere w/ 1 or the other party's right to have a fair trial a. Not a blanket gag rule b. CAN SAY neutral things in record, matters of public record, warnings to public, requests for assistance from public c. SPECIFICALLY CANNOT SAY (b/c might be inadm at trial) (1) Char. or prior criminal record of party W or prospective W (2) Prospective evid. including admissions, tests & examtns and any failure or refusal to submit to them (3) Opinions as to the merits of the case, or to the trustworthiness of the evidence (4) The possibility of any guilty plea to the charge or to a lesser offense or, after trial but b/4 sentencing, statements reas. likely to affect imposition of sentence (criminal cases) -> S.Ct. in 1991 held similar state restrictions void for vagueness (might violate 1st Am speech protection or 6th Am right to effective counsel for defense atty in criminal case) ----- Brought to you by - The 'Lectric Law Library The Net's Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com