Cleveland Law Library Weblog

ABA Issues Formal Opinion 480 on Lawyer Blogging and Confidentiality

On Friday, the American Bar Association (ABA) issued Formal Opinion 480 regarding lawyer blogging and confidentiality. Citing Rule 1.6 of the ABA's Model Rules of Professional Conduct, the  opinion states that:

"Lawyers who blog or engage in other public commentary may not reveal information relating to
a representation, including information contained in a public record, unless authorized by a
provision of the Model Rules."

Ohio Supreme Court Board of Professional Conduct Issues 2 New Advisory Opinions

Earlier this week, the Ohio Supreme Court Board of Professional Conduct issued 2 new Advisory Opinions on lawyers participation in lawyer referral services and law students with legal intern certificates :

1) 2016-3: "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. 5.4. 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."

2) 2016-4: "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 by the 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."

Ohio Supreme Court Board of Professional Conduct Issues Advisory Opinion About Lawyers Reporting Others' Misconduct

The Ohio Supreme Court Board of Professional Conduct has issued its second Advisory Opinion (2016-2) of the year. This Advisory Opinion covers a lawyer’s duty to report unprivileged knowledge of another lawyer’s misconduct. The Syllabus of the Opinion states that:

"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. 1.6."

This Opinion replaces Opinion 90-01.

The Ohio Supreme Court provides all of its Advisory Opinions on this page, with various finding tools for accessing them.

Ohio Supreme Court Board of Professional Conduct Publishes Ohio Ethics Guide on Client File Retention

The Ohio Supreme Court Board of Professional Conduct has just published its first Ethics Guide on Client File Retention. This Guide covers applicable ethical and legal obligations and discusses confidentiality of client files, retention periods, different types of documents that may be considered property of clients, client retention policies, notices to clients, file closing procedures, destruction of files, emails, digital media and cloud storage, and succession planning. The Board of Professional Conduct also plans to issue more Ethics Guides in the future on "lawyer succession planning and lawyers transitioning to the bench from private or public practice." The Ohio Supreme Court has issued a Press Release containing additional details. 

The Ohio Supreme Court Has Issued An Advisory Opinion for 2016-1 on Lawyers' Flat Fees

As its first Advisory Opinion of the year, the Ohio Supreme Court has issued Opinion 2016-1 on lawyers' flat fees. The Syllabus of this Opinion states that:

"It is proper for a lawyer to enter a flat fee agreement requiring a client 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."

Ohio Supreme Court Advisory Opinions can be found on the Court's Advisory Opinions page.

Ohio Supreme Court Adopts New Amendments to Ohio Ethics Rules for Lawyers

The Ohio Supreme Court recently adopted several amendments to the Ohio Rules of Professional Conduct. Some of the major topics covered by the new changes include technology, confidentiality, client development, and client solicitation. According to Courtnewsohio.gov:

"A few of the more significant changes include:

• Requiring lawyers to maintain competency regarding the risks and benefits of technology (Rule 1.1), including making reasonable efforts to prevent the unauthorized disclosure of or access to confidential client information (Rule 1.6).
• Revising Rule 4.4 (Rights of Third Persons) to add electronically stored information to the scope of the rule and to expand on a lawyer’s duties if he or she inadvertently receives this type of information.
• Modifying Rules 7.1, 7.2, and 7.3 (Lawyer Advertising) to reflect advertising and solicitations that may be made via the Internet and in electronic format. In addition, the Ohio-specific portion of Rule 7.3 would be revised to correspond to references to telemarketing laws and rules contained in Board Advisory Op. 2013-2 (text message solicitations).
• Amending Rule 1.6 (Confidentiality) to allow lawyers to make a limited disclosure of confidential information to detect and resolve conflicts associated with a change in employment or a change in the ownership or composition of a law firm.
• Amending Rule 7.3 to prohibit the solicitation of potential clients who are minors or who are unable to make informed decisions regarding representation."

Ohio Attorneys with Last Names beginning with A-L-Don't Forget to File Your CLE Reports by 1/31/14

Just a quick reminder to Ohio attorneys whose last names begin with A-L. Don't forget to file your CLE report by January 31st. You can file online or by mail, but don't forget because there are sanctions for filing late or not filing, including fines and suspension from the practice of law. 

Ohio Supreme Court Issues Guidelines for Prosecutors and Defense Attorneys

The Ohio Supreme Court's Commission on Professionalism has just issued guidelines for prosecutors and defense attorneys. The new publication is called Professionalism Dos and Don'ts:Conduct of Prosecutors and Defense Attorneys. The Supreme Court's press release highlights some of the Court's key recommendations:

"For prosecutors, some of the Dos and Don’ts include:

• Do remember your job is not to “win,” but to help administer justice.
• Do be realistic about the strengths and weaknesses of your case as it evolves and circumstances change. Be willing to adjust your position as justice requires.
• Don’t be vindictive or punitive to defendants who are exercising their rights.

Included in the Dos and Don’ts for defense attorneys:

• Do advocate creatively, but reasonably.  Remember that your credibility will affect this client and all of your clients, present and future.
• Do contact the prosecutor with questions or concerns about discovery before filing a motion to compel or a motion for a continuance.
• Don’t file motions that are frivolous, or file certain motions only because you believe such motions are usually filed, or file last-minute motions with respect to matters about which you have long been aware."

OSBA Issues Informal Advisory Opinion 2013-03 on Lawyers Storing Client Data in the "Cloud"

The Ohio State Bar Association has issued an Informal Advisory Opinion (2013-03) on lawyers' use of the "cloud" to store client data. This Opinion specifically states that:

"The Committee's opinion is that storing client data in "the cloud" is a permutation on tra ditional waysofstoring client data, and requires lawyersto follow the ethics rules that apply to client information in whatever form. With due regard for these rules and related Ohio ethics opinions, theCommittee advisesthat theOhio Rules ofProfessional Conduct do notprohibit storing client data in "the cloud.""

Ohio Supreme Court is Unbundling Ohio Lawyer Ethics CLE Requirements

Many changes are coming to CLE requirements for Ohio attorneys, including 
easier ways to obtain credit for self-study courses and pro bono service. In 
addition, the Ohio Supreme Court is  “unbundling” our “professional conduct” 
requirement. Instead of obtaining 1 hour of ethics, 1 hour of professionalism, 
and a half hour of substance abuse, attorneys will be allowed to choose 2.5 
hours from the following categories:
•	Legal ethics
•	Professionalism
•	Alcoholism, substance abuse, or mental health issues
•	Access to justice and fairness in the courts 
•	Interacting with self-represented litigants
•	Encouraging pro bono representation
•	Accommodating language interpretation
•	Assuring fairness in matters of race, ethnicity, foreign origin, religion, 
        gender, sexual orientation, disability, socio-economic status
The new topics will create new opportunities for programs, and the 
flexibility in subjects will help attorneys fulfill their biennial CLE requirements.