On October 22, 2016, the legal ethics team of Kegler Brown presented a professional responsibility CLE seminar at Cleveland-Marshall College of Law. Along side our lawyers during a panel discussion was the Honorable Judge Joan Synenberg, who gave important insight and a new perspective when dealing with professional conduct.

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The Finality of
GRIEVANCES
presented by
Geoffrey Stern

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CONFIDENTIALITY
presented by Chris Weber
Prospective Client

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Tattoogate
+
RPC 1.18
=
Urban Meyer

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ODC v. Cicero
Board
recommended
6-month
suspension
Court ordered
1-year
suspension

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“Prospective Client”
a person who discusses with
lawyer possibility of forming
attorney-client relation
ISSUE #1

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Rife or Epling
Tattoo artist,
drug dealer,
memorabilia
collector
OSU players
exchanged
memorabilia
for tattoos

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FBI raid
Rife meeting
with Cicero?
Email to Tressel
Rife meets
another attorney
Rife meeting
with Cicero
April 1
2010
April 2
2010
April 2
2010
April 15
2010

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April 16, 2010
More Emails to Tressel

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“I had Rife in my
office for 1½ hours
last night”
“If he retains me, and he may…”
“He wanted my
opinion yesterday
on his situation”
“I have to sit tight and
wait to see if he retains
me, but at least he came
in last night to do a face-
to-face with me”

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Finding:
Rife = Prospective Client

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Information Revealed
RPC 1.18(b) – “shall not use
or reveal information
learned in consultation”
ISSUE #2

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Emails to Tressel
Revealed what was discussed
at April 15 meeting

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“Terrell gave him
some type of MVP
trophy”
“Has cleats, jerseys,
game ball, rings”
“He is in really
big trouble”
“Feds offered 10-
year prison term”
“He wanted
my opinion”

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Finding:
Revealed information
learned in consultation

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Sanction
1-year suspension
Aggravation
ISSUE #3

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“Primary purpose in
sending e-mails to
Tressel was to protect
OSU players + program”

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“Respondent’s desire to
be eyes and ears of OSU
football program”
“Loyalty to OSU football
program trumped loyalty
to prospective client”

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Thank You!
Christopher Weber,
Managing Director
Kegler Brown Hill + Ritter
cweber@keglerbrown.com
keglerbrown.com/weber
614.462.5415

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2015
Amendments
presented by Jonathan E. Coughlan
to the Ohio Rules
of Professional
Conduct

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Rule 1.1
Competence
Amendment: to maintain the requisite
knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice,
including the benefits and risks associated
with relevant technology

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+ Adds more detail to suggested best
practices whenever two lawyers not in
same firm work on same legal matter;
+ Obtain informed consent of client;
+ Consult with client about scope of
representation and allocation of
authority between them.
Rule 1.1
Competence

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A lawyer may limit the scope of a new or
existing representation if the limitation is
reasonable under the circumstances and the
limitation is communicated to the client,
preferably in writing…
Rule 1.2
Scope of Representation

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+ Rule 1.4 sets forth minimum required
communication between lawyer and client
+ With the exception of division (c), Rule 1.4
does not have a specific counterpart in the
Code of Professional Responsibility
+ Rule 1.4. (c) replaces DR 1-104 (requiring
disclosure in writing of a lack of professional
liability insurance)
Rule 1.4
Communication

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A lawyer should promptly respond to or
acknowledge client communications
(formerly phone calls)
Rule 1.4
New Comment

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Rule 1.6(a) is broad in scope and provides
that unless an exception applies, all
information relating to the representation of
a client is protected from disclosure
Rule 1.6
Confidentiality of Information

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Rule 1.6(d) requires a lawyer to reveal client
information, to the extent the lawyer
reasonably believes disclosure is necessary,
to comply with Rule 3.3 (Candor Toward a
Tribunal) or Rule 4.1 (Truthfulness in
Statements to Others)
Rule 1.6
Confidentiality of Information

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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

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

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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
Rule 1.18
Duties to Prospective Clients

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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

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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
Rule 4.4
Respect for Right of 3rd Persons

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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

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Rule 5.1
Responsibilities of
Supervisory Lawyers

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5.1(c): Supervising lawyer is
responsible for another
lawyer’s misconduct if:
Supervisor orders or ratifies
the misconduct; or1
Supervisor has direct authority
over lawyer and knows of the
misconduct at a time when its
consequences can be avoided
or mitigated, but fails to act.
2

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A subordinate lawyer does not violate the
Ohio Rules of Professional Conduct if that
lawyer acts in accordance with a supervisory
lawyer’s reasonable resolution of a question
of professional duty
Rule 5.2
Responsibilities of Subordinate Lawyers

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Rule 5.3 parallels Rule 5.1 and addresses
the responsibilities of a lawyer with regard
to the conduct of non-lawyer assistants
Rule 5.3
Responsibilities: Non-Lawyer Assistants

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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

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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
Rule 5.5
Unauthorized Practice of Law/
Multi-jurisdictional Practice of Law

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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…”

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+ 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
Rule 7.2
Advertising + Recommendation
of Professional Employment

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

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

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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
Rule 7.3
Advertising

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Thank You!
Jonathan E. Coughlan
Director, Kegler Brown Hill + Ritter
jcoughlan@keglerbrown.com
keglerbrown.com/coughlan
614-462-5455

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+ presented by Jason Beehler
Known
Unknowns

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

50. Panel DISCUSSION

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Withdrawal from
REPRESENTATION

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Candor to the
TRIBUNAL

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