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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.1 RULE 1.1 COMPETENCE

1.1:100 Comparative Analysis of Ohio Rule

1.1:101 Model Rule Comparison

Ohio Rule 1.1 is identical to the Model Rule.

1.1:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.1: DR 6-101(A)(1) & (2).

1.1:200 Disciplinary Standard of Competence

  • Primary Ohio References: Ohio Rule 1.1
  • Background References: ABA Model Rule 1.1
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 6.8-6.12, 6.15
  • Commentary: ABA/BNA § 31:201, ALI-LGL § 16, Wolfram § 5.1

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 6.8-6.12, 6.15 (1996).

Competence in general: Ohio Rule 1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Competence, thus, has four primary components. First and second, a lawyer must have, or acquire through study or association with another, the legal knowledge and skills needed to handle a particular representation. Third and fourth, the lawyer must handle the matter with adequate thoroughness and preparation. As a closely related point, the lawyer must be diligent and not neglect those matters entrusted to him or her.  See Ohio Rule 1.3. Neglect is discussed in sections 1.3:200 - :300; adequate knowledge, skill, thoroughness, and preparation are discussed in this section infra.

The provision of competent representation should flow both from the lawyer's sense of pride in his or her professional work and from an appreciation of the lawyer's vital role in the legal process. This right to competent representation is a core duty owed to clients.  “In all professional functions a lawyer should be competent, prompt, diligent, and loyal.”  OHRPC Preamble:  A Lawyer’s Responsibilities [4].  As was stated in former OH EC 1-1: "A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer."

Comment [5] further indicates that

[t]he required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.

Ohio Rule 1.1 cmt. [5]. Moreover, the circumstance can affect how much a lawyer may reasonably be expected to do. While the Ohio drafters chose to delete MR 1.1 cmt. [3] (dealing with emergencies), there can be no doubt that what a competent lawyer can do in a particular situation is influenced by the time the lawyer has to do it. Finally, while a lawyer cannot bargain away competence, the ability to limit the representation pursuant to Ohio Rule 1.2(c) can eliminate responsibility to handle for a client some aspects of a case that a competent lawyer would otherwise be expected to undertake. See section 1.2:510.

The duty of competence applies regardless of the fee arrangement. Care must be taken to assure, in non pro-bono cases, that the fee structure is not so inadequate that the lawyer may be tempted to compromise this duty. Bd. of Comm'rs on Grievances & Discipline Op. 97-7, 1997 Ohio Griev. Discip. LEXIS 2 (Dec. 5, 1997) (raising this concern under former OH DR 6-101 in relation to a proposed plan whereby a lawyer would do some or all of an insurer's defense work for a fixed flat fee without regard to the degree of time or effort involved).

Special competence problems also may arise from the medium through which the representation is provided. When representation is provided without any in-person contact, such as solely by telephone or over the Internet, the lawyer must assess whether, in the circumstances of the particular case, competent representation can be provided in this restrictive environment. See Bd. of Comm'rs on Grievances & Discipline Op. 99-9, 1999 Ohio Griev. Discip. LEXIS 10 (Dec. 2, 1999) (Internet advice); Bd. of Comm'rs on Grievances & Discipline Op. 92-10, 1992 Ohio Griev. Discip. LEXIS 11 (Apr. 10, 1992) (telephone advice); Ohio State Bar Ass'n Informal Op. 97-3 (Apr. 7, 1997) (telephone advice).

Skill requirements - Acquisition: One aspect of competence is assuring that a lawyer has, or will acquire, the requisite skills to handle a matter. Ohio Rule 1.1 (mandatory duty of competence includes the "skill . . . reasonably necessary to the representation"); see id. cmt. [2] (discussing various skill factors). This is the minimum level of competence required, applicable to the occasional practitioner and the full-time generalist alike. Cleveland Bar Ass'n Op. 100 (Sept. 5, 1973) (same standard of competence applies to occasional practitioner as to all practitioners). But, as is implicit in Ohio Rule 1.1, a more demanding standard will apply where a lawyer undertakes representation requiring specialized expertise. Inasmuch as "competent representation requires" whatever is "reasonably necessary to the representation," it follows that in representation requiring specialized skills, the lawyer must have, or obtain, the "requisite level of competence" (cmt. [4]) "reasonably necessary to the representation."

As Comments [2] and [4] reflect, if a lawyer lacks the skills to handle a matter when it is first accepted, the lawyer may subsequently become competent by self-study or by association with one already competent in the field. Ohio Rule 1.1 cmts. [2] & [4] ("A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question." "A lawyer may accept representation where the requisite level of competence can be achieved through study and investigation . . . .").

Self-study, however, is a permissible option only when "such additional work would not result in unreasonable delay or expense to the client." Ohio Rule 1.1 cmt. [4]. Cf. Ohio Rule 1.5(a) (lawyer cannot charge "clearly excessive fee"). See generally section 1.5:410. It is unreasonable for the client to be expected to pay a substantial price in time or money for a lawyer to acquire competence in a matter if other lawyers, already competent in the area, could handle it far more quickly or inexpensively. At a minimum, the client should be sufficiently informed so that the client can make a knowledgeable decision whether to accept the additional burdens in time or money to secure counsel of choice. See Ohio Rule 1.1 cmt. [5]; Ohio Rule 1.4(a)(2) & cmts. [3] & [5].

As noted, association with another attorney who already is competent in an area is a permissible way for a less experienced attorney to assure that competent counsel is provided, Ohio Rule 1.1 cmt. [2], but the client should be consulted as to any such arrangement. See Ohio Rule 1.1 cmt. [5]; Ohio Rule 1.4(a)(2) & cmts. [3] & [5]. In doing so, the lawyer should be certain that the client is comfortable with the lawyer being considered for affiliation and also understands any fee implications arising from the addition of another lawyer to the representation. (See also Ohio Rule 1.5(e)(2) (written client consent required for fee division among lawyers from different firms). See section 1.5:800.) Caution must be exercised to assure that a good working relationship with co-counsel is maintained, however. If it is not, under the former OHCPR the affiliation has been found insufficient to meet the competence requirements of OH DR 6-101(A)(1). Cincinnati Bar Ass'n v. Weber, 62 Ohio St.3d 222, 581 N.E.2d 519 (1991) (lawyer found to have violated OH DR 6-101(A)(1) by mishandling estate where there was a breakdown in the lawyer's relationship with the experienced probate attorney who had been assisting in the matter). See also Bar Ass'n of Greater Cleveland v. Shillman, 61 Ohio St.2d 364, 402 N.E.2d 514 (1980) (after experienced co-counsel died, respondent's flawed estate administration, without having prior experience with estate of this complexity, violated OH DR 6-101(A)(1)).

An unusual variant on the problem was presented in Cleveland Bar Ass'n v. Snow, 72 Ohio St.3d 409, 650 N.E.2d 858 (1995). There, the Court found that failure to associate with local counsel in an out-of-state federal court matter, where required to do so by local rule, violated OH DR 6-101(A)(1).

On a more general level, the comments to Ohio Rule 1.1 stress the need for lawyers to keep up with current legal developments and to participate in continuing legal education programs as a way to maintain competence. See Ohio Rule 1.1 cmt. [6]. See generally Gov Bar R X 3 (mandating continuing legal education for lawyers licensed to practice in Ohio) and the Continuing Legal Education Regulations (CLE Regs 100-1001) found at Gov Bar R App I.

Skill requirements - Disciplinary standards: Of the former OHCPR case law addressing lawyer skill requirements in the context of disciplinary actions, a number of the decisions that cited the OH DR 6-101(A)(1) duty of competence did so along with other disciplinary rules, without delineating what aspect of the lawyer's conduct reflected a lack of skill, rather than neglect or some other violation. See, e.g.,Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749 (failure to file response to summary judgment; failure to timely file appellate brief; failure to file wrongful death action within statute of limitations; in each instance, DR 6-101(A)(1)-(3) violated); Columbus Bar Ass’n v. Hayes, 118 Ohio St.3d 336, 2008 Ohio 2466, 889 N.E.2d 109 (failure to appear at appellate oral argument; failure to file Supreme Court appeal; violation of, inter alia, DR 6-101(A)(1) & (3)); Columbus Bar Ass'n v. Smith, 108 Ohio St.3d 146, 2006 Ohio 413, 841 N.E.2d 773 (failure to file record on appeal; failure to timely appear for court hearings); Columbus Bar Ass'n v. Albrecht, 106 Ohio St.3d 301, 2005 Ohio 4984, 834 N.E.2d 812 (failing to provide annual trust accountings, failing timely to file trust tax return, failing to file documents necessary to secure child support for client, all of which resulted in penalties and interest charges to the trust client and loss of 12 months of child-support payments for his client; DR 6-101(A)(1), as well as 6-101(A)(3), and numerous other violations found); Cleveland Bar Ass'n v. Briggs, 89 Ohio St.3d 74, 728 N.E.2d 1049 (2000) (without elaboration, Court holds that respondent's filing with Secretary of State, at insistence of beneficiary of trust for which respondent was trustee, of documents indicating that she was sole incorporator of and statutory agent for corporation in order to shield beneficiary's assets from claims of creditors, and in engaging in self-dealing in trust funds, violated not only former OH DR 1-102(A)(4) but also 6-101(A)(1)); Cuyahoga County Bar Ass'n v. Josselson, 43 Ohio St.3d 154, 539 N.E.2d 625 (1989). (Josselson is a strange case. The legal matter that respondent was found to have been not competent to handle (and neglected) was, of all things, a slip-and-fall case. Rather than OH DR 6-101(A)(1), respondent's actions in entering into a settlement that the client had rejected and then failing to advise the court of the rejection would appear more appropriately to have raised OH DR 7-101 and OH EC 7-7 concerns. See section 1.2:320.) See also Cleveland Bar Ass'n v. Aldrich, 93 Ohio St.3d 625, 627, 758 N.E.2d 180, 181 (2001), where respondent's pattern of incompetence in numerous matters was held to have violated OH DR 1-102(A)(6) and OH DR "6-101(A) (failing to act competently)"; it is unclear whether the Court intended to cite subsection (A)(1) or, by citing the Rule generally, was indicating that respondent violated all three of its subsections. Another odd application of former DR 6-101(A)(1) occurred in Columbus Bar Ass'n v. Moushey, 104 Ohio St. 3d 427, 2004 Ohio 6897, 819 N.E. 2d 1112. There respondent converted to his own use checks from the client to be used to pay the client's estimated taxes; in another count, respondent withdrew from the representation (the client's tax returns had been selected for audit) but failed to return the client's money. Without any explanation of how competence (as opposed to honesty) bore on this misconduct, the Court found 6-101(A)(1) violated. Because Moushey was found to have violated a myriad of disciplinary rules and was disbarred, perhaps the explanation of the competency violation got lost in the shuffle.

Some cases, however, did address the skill requirement more directly. Misconduct often arose in situations in which lawyers took on representation in areas in which they had little or no experience and failed to acquire the necessary knowledge to handle the matter competently or to associate themselves with another lawyer who had the needed expertise. Indeed, in Office of Disciplinary Counsel v. France, 97 Ohio St.3d 240, 2002 Ohio 5945, 778 N.E.2d 573, respondent testified that he had no clear idea how to determine the statute of limitations for his client's medical malpractice case (which was dismissed on limitations grounds) and also conceded that he had little or no experience in handling criminal appeals such as the one that was dismissed because of his failure to prosecute. Similarly, in Akron Bar Ass'n v. Maher, 110 Ohio St.3d 346, 2006 Ohio 4575, 853 N.E.2d 660, respondent "testified that he had little experience in personal injury, that both cases were difficult in terms of liability and damages, and that he consequently considered the cases of low priority [!?]," id. at para. 11; accord Erie-Huron Joint Certified Grievance Comm. v. Huber, 108 Ohio St.3d 338, 2006 Ohio 1066, 843 N.E.2d 781 (matter involved complex trust; "it was clear from respondent's statements to relator that he rarely handled complex trust matters in his legal practice," id. at para. 8; Warren County Bar Ass'n v. Marshall, 105 Ohio St.3d 59, 2004 Ohio 7011, 822 N.E.2d 355 (admission by respondent that he had no experience with personal injury cases and should have asked for assistance of another lawyer; further admitted to being unqualified to handle zoning case for another client; OH DR 6-101(A)(1) violated). In Cleveland Bar Ass'n v. Dixon, 95 Ohio St.3d 490, 2002 Ohio 2490, 769 N.E.2d 816, the respondent admitted that she did not have the experience necessary to handle a probate matter competently, and the Court enumerated her mistakes in failing to do so. The respondent in Office of Disciplinary Counsel v. Sims, 96 Ohio St.3d 465, 2002 Ohio 4798, 776 N.E.2d 18, was found to have incompetently represented a disabled client, who had given respondent a power of attorney to manage her affairs. As a result, she was without money to buy even the basic necessities. Respondent confessed that he "had simply gotten 'in over [his] head' and just 'froze.'" Id. at para. 8 (bracketed material by the Court). In Toledo Bar Ass'n v. Vild, 84 Ohio St.3d 179, 179, 702 N.E.2d 865, 866 (1998), the Court found a lawyer had violated the duty of competence when, because of the attorney's "complete inexperience and lack of knowledge," the attorney failed to file the necessary forms in an adoption proceeding and failed to order a required home study. Likewise, in Columbus Bar Ass'n v. Jackson, 78 Ohio St.3d 463, 678 N.E.2d 920 (1997), respondent conceded "that he had not filed an Ohio estate tax return in the case [in which he was representing the fiduciary of the estate] because he did not know how to prepare or file one."  Id. at 464, 678 N.E.2d at 921. And in Cincinnati Bar Ass'n v. Tekulve, 66 Ohio St.3d 164, 610 N.E.2d 980 (1993), a lawyer was found to have violated the competence provision in mishandling the tax aspects of an estate matter, when he admitted he had never before handled an estate that required the filing of a federal estate tax return, and that if he had it to do over again, he would have obtained the assistance of another lawyer in doing so. One additional case that provides insight into the skill requirement, even though former OH DR 6-101(A)(1) was neither charged nor cited, is Office of Disciplinary Counsel v. Ginsberg, 78 Ohio St.3d 306, 677 N.E.2d 1184 (1997). In Ginsberg, the respondent found himself out of his depth in representing a new client and ended up being convicted of conspiracy to evade income taxes owed by a corporation controlled by the client. Imposing an indefinite suspension, the Court had these telling remarks regarding respondent's competence (or lack thereof):

We find a case where an attorney's reach for a more sophisticated practice exceeded his grasp of the legal tools required to work competently in the field. As a result, respondent did not try to nor was he able to understand the illegal or fraudulent actions which his clients were requesting. Our ethical considerations [see former OH EC 6-1 to 6-4] indicate that an attorney should accept employment only in matters which he is or intends to become competent to handle. This situation demonstrates what may befall an attorney unable to perform the "due diligence" necessary to practice in a particular area of the law.

Id. at 308, 677 N.E.2d at 1185-86 (bracketed material added).

In other instances, intervening factors, such as mental illness, undercut the lawyer's ability to provide competent representation. See Cincinnati Bar Ass'n v. Brown, 78 Ohio St.3d 345, 678 N.E.2d 513 (1997), respondent in 1993 pursued a malicious prosecution and defamation claim on behalf of his client; the client was awarded $1.00 in damages because respondent provided no evidence of damages. According to respondent, in an affidavit filed in a Kentucky action, prior to July 1994 he was suffering from manic depression "and was not capable of performing as an attorney." Id. at 345-46, 678 N.E.2d at 513.

While the OHCPR cases typically focused on lack of competence on purely legal issues, in certain areas providing the requisite skill required competently addressing financial issues as well. As the Court remarked in Columbus Bar Ass'n v. Foster, 92 Ohio St.3d 411, 412, 750 N.E.2d 1112, 1113 (2001), the Board member handling the proceeding found that respondent's consistent mishandling of a number of bankruptcy cases "indicated that he was not competent to practice bankruptcy law." The Supreme Court quoted with approval language from two of its earlier cases ( Dayton Bar Ass'n v. Andrews, 79 Ohio St.3d 109, 112, 679 N.E.2d 1093, 1095 (1997); Columbus Bar Ass'n v. Flanagan, 77 Ohio St.3d 381, 383, 674 N.E.2d 681, 683 (1997)) to the effect that

"the counseling of a client in financial matters . . . is a serious matter that deserves the attention of a qualified attorney." If the attorney cannot or will not give this matter his necessary attention, or is not qualified to handle the matter he undertakes, he violates our Disciplinary Rules.

92 Ohio St.3d at 413, 750 N.E.2d at 1113-14.

Violation of the competency requirement can be proven in a variety of ways. Often the lawyer admits to insufficient performance. See France, Dixon, Jackson supra. At other times, testimony comes from outside sources. For example, in Dayton Bar Ass'n v. Timen, 62 Ohio St.2d 357, 405 N.E.2d 1038 (1980), a lawyer was found to have lacked the requisite skill in handling a federal criminal case, based on the testimony of the federal district court judge who presided in the action. The judge testified:

"An examination of the Record indicates to me that [counsel] lacked a fundamental knowledge of proper representation. The memoranda that were filed were meritless, they were supported by no authority, and the argument presented before me was substantially less than professional. There were repeated references to counsel's lack of understanding and inability to respond to the motions, and the totality of his presentation at that omnibus hearing was far below the professional standard that is expected in the Federal Courts."

Id. at 358, 405 N.E.2d at 1038.

In some instances, the problem arose in connection with the lawyer's venturing into a jurisdiction or court in which he or she was not admitted. Thus in Dayton Bar Ass'n v. Moore, 2 Ohio St.3d 11, 442 N.E.2d 71 (1982), lack of competence was demonstrated where a lawyer accepted representation in a class action pending in a federal district court before which he was not admitted to practice; the class action was dismissed by the court "after determining that respondent was too inexperienced in class actions to provide adequate representation for his clients."  Id. at 11, 442 N.E.2d at 71. See also Office of Disciplinary Counsel v. Kearns, 67 Ohio St.3d 77, 616 N.E.2d 194 (1993) (former OH DR 6-101(A)(1) violated where lawyer filed suit in state in which he was not authorized to practice without seeking court permission to proceed there). This is not to suggest that a lawyer can never undertake representation in a case in a jurisdiction where the lawyer is not yet licensed. Such conduct is permitted as long as the lawyer is or can become competent in that area of the jurisdiction's law, and takes appropriate steps to appear personally or through another in the foreign jurisdiction's courts. Toledo Bar Ass'n Op. 89-12 (Oct. 5, 1989) (involving Ohio lawyer's handling of Michigan dog-bite case).

From these cases, it appears that included among the skills a lawyer must possess to be considered competent is a basic understanding of the law and procedures relevant to the action at hand -- i.e., the "legal knowledge" that is "reasonably necessary to the representation," in the language of Ohio Rule 1.1. A more detailed iteration was provided by Professor Wolfram, in his treatise on legal ethics, in which he defines the lawyer's skills necessary to be competent as including:

Knowledge – a competent lawyer possesses sufficient information about law and legal institutions to be able to deal effectively with many common legal problems that require additional research, and to assess the lawyer's own ability to deal with a legal problem.

Legal skills – a competent lawyer can effectively represent and sensitively communicate with a client in one or more of the common lawyer roles: analyzing a client's problem in the light of available facts and law, advising, negotiating, litigating, mediating, investigating, researching, and planning.

Office management – a competent lawyer has the intellectual, financial and managerial ability to organize, equip, and staff an office system that permits a lawyer to use knowledge and legal skills efficiently and effectively for clients.

Character – a competent lawyer possesses strengths of character that lead the lawyer to be motivated to serve clients effectively, loyally and without undue regard to the distractions of other commitments, demands, and interests.

Capability – a competent lawyer possesses physical and psychological well-being that permits a sustained level of effective practice.

Charles W. Wolfram, Modern Legal Ethics § 5.1, at 186 (1986).

The first disciplinary case to take up Rule 1.1, which treats competence, thoroughness, and preparation, is Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749. The Supreme Court found that the portion of respondent’s conduct occurring subsequent to February 1, 2007 violated this rule. As the Court stated:

A reasonably prudent and competent lawyer does not ignore a failed attempt to serve a complaint and summons for over four months. Nor does such a lawyer delay several more weeks after a court order directing him to perfect service. Finally, a reasonably prudent and competent lawyer conscientiously accounts for client funds and, at the end of the representation, retains only fees owed for his or her services.

Id. at para. 47 (violation of Rule 1.3 as well as 1.1). In another count Lawson was found to have violated 1.1 “because he did not conscientiously prepare and thoroughly pursue his client’s defense” in a criminal case. Id. at para. 55.

Skill requirements - Malpractice standards: Some further, indirect, guidance concerning the skills that a lawyer must exercise in order to provide competent representation may be derived from those lawyer malpractice cases that turn on competence issues. See sections 1.1:320-:330. Cases involving ineffective assistance of counsel also can be looked to for analogous discussions of basic competency in the criminal setting, since violations are predicated in part on proof that the lawyer's conduct in question fell below "an objective standard of reasonable representation." State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373, 375 (1989) (syllabus two). See State v. Brown, 115 Ohio St.3d 55, 2007 Ohio 4837, 873 N.E.2d 858 (in death-sentence murder case, failure to have court determine whether sole eye-witness and defendant were married and, if so, whether wife was testifying voluntarily against him, constituted ineffective assistance); State v. Bolin, 128 Ohio App.3d 58, 63, 713 N.E.2d 1092, 1095 (Cuyahoga 1998) (counsel's allowing his client (who was incompetent to stand trial) to plead guilty, based on counsel's misunderstanding that the standard for competence to enter a guilty plea had a lower threshold than the standard for competence to stand trial, when in fact the two standards are the same, was "unreasonable error" constituting ineffective assistance of counsel); State v. Edwards, 123 Ohio App.3d 43, 702 N.E.2d 1242 (1997) (failure to object to clearly improper expert testimony constituted ineffective assistance of counsel). See also Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007) (ineffective assistance in failing to object to prosecutor's improper and prejudicial closing argument comments on defendant's Fifth Amendment right to remain silent); Fields v. Bagley, 275 F.3d 478 (6th Cir. 2001) (court adopts as its own district court opinion granting habeas; relief granted for want of effective assistance of counsel on state's appeal from order granting motion to suppress: "Field's counsel did not provide any assistance at all, let alone effective assistance"; court noted that in leaving his client with no representation on appeal counsel violated former OH EC 2-30 and OH EC 2-31). See section 1.7:230 for discussion of cases dealing with ineffective-assistance-of-counsel claims premised on conflict of interest.

Admittedly, the malpractice analogy is inexact, for many cases recognize that conduct violative of the disciplinary rules is not malpractice per se, but only evidence of malpractice. See, e.g., Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 573 N.E.2d 159 (Franklin 1989); Palmer v. Westmeyer, 48 Ohio App.3d 296, 549 N.E.2d 1202 (Lucas 1988). Conversely, conduct that constitutes malpractice may not rise to the level of a disciplinary violation. See Office of Disciplinary Counsel v. Kay, 75 Ohio St.3d 397, 662 N.E.2d 351 (1996) (suggesting that while mere negligence would support a malpractice action, discipline requires something more). Cf. Collins v. Morgan, No. 68680, 1995 Ohio App. LEXIS 5098 (Cuyahoga Nov. 16, 1995) (Disciplinary Counsel decision that conduct did not warrant disciplinary action did not act as res judicata bar to subsequent action for malpractice). Nevertheless, the malpractice cases do provide some insight in defining the level of competence that reasonably can be expected of lawyers in Ohio.

The general standard of competence applied in malpractice actions in Ohio was summarized by the Sixth District Court of Appeals in Stoklosa v. McGill, No. L-91-028, 1992 Ohio App. LEXIS 728 (Lucas Feb. 21, 1992) (affirming and adopting lower court decision as its own):

[The lawyer's duty to the client consists of] the obligation to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated. Furthermore, the attorney must be ordinarily and reasonably diligent, careful, and prudent in discharging the duty he/she has assumed. This "ordinary and reasonable" standard is to be distinguished from such higher levels of care as, e.g., perfect legal knowledge or highest degree of skill, in that the attorney is not held to such lofty standards.

Id. at *8. (bracketed material added; citations omitted). Accord Palmer v. Westmeyer, 48 Ohio App.3d 296, 549 N.E.2d 1202 (Lucas 1988) (setting forth similar standard).

The array of skills a lawyer must exercise in providing competent representation is wide and varied. Case law in the area, however, tends to focus on a subset of these skills, requiring proficiency, where applicable, in: (1) legal research, (2) factual investigation, (3) legal drafting, (4) counseling and advising clients, and (5) litigation skills. One must also have sufficient knowledge of the area in which the lawyer is practicing to take all measures reasonably necessary to protect the client's interests.  The malpractice and ineffective-assistance-of-counsel cases discussing these aspects of competence are set forth in section 1.1:320.

Thoroughness and preparation: Thoroughness and preparation reasonably necessary under the circumstances of the case are part of the duty of competence. Ohio Rule 1.1. See id. cmt. [5] (competence "includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners").

Under the former OHCPR, in those instances where OH DR 6-101(A)(2) violations for lack of preparation were found, the cases usually involved neglect under OH DR 6-101(A)(3) as well, and typically no attempt was made to differentiate those aspects of the lawyer's conduct that constituted lack of adequate preparation. See, e.g., Columbus Bar Ass’n v. Gueli, 119 Ohio St.3d 434, 2008 Ohio 4786, 894 N.E.2d 1231 (mishandling estate; failure to conscientiously pursue medical malpractice claim); Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749 (failure to appear with client on arraignment date; abandoning appeal after filing notice of appeal); Cuyahoga Bar Ass'n v. Smith, 115 Ohio St.3d 95, 2007 Ohio 4270, 873 N.E.2d 1224, (multiple instances of neglect and inadequate preparation, including erroneous advice that tax refunds need not be turned over to bankruptcy trustee and failure to complete paperwork required for any petition filed after changes in bankruptcy law effective in 2005); Cuyahoga County Bar Ass'n v. Jurczenko, 114 Ohio St.3d 229, 2007 Ohio 3675, 871 N.E.2d 564; Cuyahoga County Bar Ass'n v. Paulson, 111 Ohio St.3d 415, 2006 Ohio 5859, 856 N.E.2d 970; Akron Bar Ass'n v. Holder, 105 Ohio St.3d 443, 2005 Ohio 2695, 828 N.E.2d 621; Columbus Bar Ass'n v. Ginther, 98 Ohio St.3d 345, 2003 Ohio 1010, 785 N.E.2d 432 (respondent missed filing deadline for brief on appeal from agency ruling; when agency stipulated to extension, he failed to file the extension and then failed to file response to agency's summary judgment motion; violation of former OH DR 6-101(A)(2) & (A)(3)); Dayton Bar Ass'n v. Engel, 93 Ohio St.3d 623, 758 N.E.2d 178 (2001) (mishandling of estate in manner more akin to neglect than lack of preparation, but violation of both OH DR 6-101(A)(2) & (A)(3) found); Office of Disciplinary Counsel v. Braun, 90 Ohio St.3d 138, 735 N.E.2d 430 (2000) (failure to file action in the appropriate state court before statute of limitations ran, together with neglect of other representations, resulted in violations, inter alia, of OH DR 6-101(A)(2) & (A)(3)); Columbus Bar Ass'n v. Kile, 55 Ohio St.3d 20, 562 N.E.2d 889 (1990) (filing of bankruptcy petition one year after its preparation, without further consultation with client to ascertain whether the papers were still accurate and necessary, and failing to represent client at creditor's meeting, shows lack of preparation and neglect); Toledo Bar Ass'n v. Wroblewski, 32 Ohio St.3d 162, 512 N.E.2d 978 (1987) (handling estate without attempting to determine whether decedent was survived by next of kin shows lack of preparation and neglect).

There are exceptions, however. The following decisions deal with DR 6-101(A)(2) violations – not in conjunction with 6-101(A)(3) – and at least two of them discuss the preparation aspect in some detail. Thus, in Cincinnati Bar Ass’n v. Mullaney, 119 Ohio St.3d 412, 2008 Ohio 4541, 894 N.E.2d 1210, the three respondents, members of the Brooking law firm, agreed to represent customers of Foreclosure Solutions, a company “purportedly” in the business of helping homeowners avoid foreclosure, in the courts of Kentucky and, subsequently, in Ohio courts. The Foreclosure Solutions “plan” was to help the homeowner set up a savings account and allow the company to use the money in the account to renegotiate the loan with lenders. The Brooking law firm lawyers’ involvement in this operation is described by the Court:

In following its typical procedure, the Brooking firm lawyers did not as a rule meet with the Foreclosure Solutions clients to determine their particular objectives or complete financial situation or to discover facts that could be defenses to foreclosure. . . .

In this way, [respondents] failed to determine what action, including filing bankruptcy immediately, was in any one particular client’s best interest. Respondents instead simply followed the Foreclosure Solutions “savings plan” strategy and allowed the foreclosure action to proceed until either a settlement could be negotiated with the lender or the court granted judgment in favor of the lender and ordered the property to be sold, with the lawyers filing routine pleadings and motions at critical stages to delay the process. Only when a sale was imminent did [respondents] advise the clients to consider another remedy by contacting a bankruptcy attorney.

Id. at paras. 17-18. Although DR 6-101(A)(2) (and 7-101(A)(1)) “prohibited [respondents] from surrendering their professional judgment to Foreclosure Solutions,” id. at para. 23, their conduct failed to measure up, and the Court, (in language that fits comfortably with Rule 1.5 cmt. [5], quoted above) explains how the adequate preparation obligation was breached here:

Mullaney, Brooking, and Moeves failed to evaluate their clients’ situations and develop a strategy to meet their individualized needs, and instead stuck to Foreclosure Solutions’ single strategy to obtain relief. By not investigating and evaluating each client’s debts and assets and other potential resources in order to assess the opportunities presented by existing law, respondents were inadequately prepared to represent their clients and failed to seek the clients’ lawful objectives. We therefore find that respondents violated DR 6-101(A)(2) and 7-101(A)(1).

Id. at para. 27 (emphasis added).

The charge of violation of DR 6-101(A)(2) was also directly addressed by the Court in Columbus Bar Ass'n v. Farmer, 111 Ohio St.3d 137, 2006 Ohio 5342, 855 N.E.2d 462.  In Farmer, the panel and Board found a violation in that respondent failed properly to research the case before making promises to his clients.  In the words of the Court,

Respondent swept the Martins up and strung them along, promising an improved brief and investigations to justify postconviction proceedings or a motion for new trial. . . . For making promises to Martin and his family before he could gauge the realistic possibilities, we find respondent in violation of DR 6-101(A)(2).

Id. at para. 28.

The respondent in Disciplanary Counsel v. Ita, 117 Ohio St.3d 477, 2008 Ohio 1508, 884 N.E.2d 1073, failed to investigate his personal injury client's marital status (they were living apart and later divorced); as a result he filed an unauthorized claim for loss of consortium on behalf of his client's wife and then as part of the settlement of the case voluntarily dismissed the claim with prejudice without the wife's consent. His failure to confirm his client's marital status or even to speak with the wife before filing suit violated DR 6-101(A)(2). Other examples include Dayton Bar Ass'n v. Timen, 62 Ohio St.2d 357, 405 N.E.2d 1038 (1980), where the lawyer diligently handled the representation, but did so with work that evidenced inadequate or improper preparation and inattention to detail. In Mahoning County Bar Ass'n v. Dann, 101 Ohio St.3d 266, 2004 Ohio 716, 804 N.E.2d 428, respondent was publicly reprimanded for violation of OH DR 6-101(A)(2) for his error-filled representation of a client, including filing a motion to terminate a nonexistent spousal support order. See also Columbus Bar Ass'n v. Finneran, 80 Ohio St.3d 428, 687 N.E.2d 405 (1997) (respondent, in numerous cases and to prejudice of his clients, persisted in erroneous view that ORC 2305.19 could be used in conjunction with OH Civ R 41 to enable case to be voluntarily dismissed and refiled infinite number of times. "Here, respondent either was not qualified to handle those cases or handled them without adequate preparation,"  id. at 431, 687 N.E.2d at 407, and thereby violated, inter alia, OH DR 6-101(A)(1) & (A)(2)); Cleveland Bar Ass'n v. Chandler, 72 Ohio St.3d 84, 647 N.E.2d 781 (1995) (OH DR 6-101(A)(2) violation found where lawyer misconduct included failing to undertake discovery or other preparation before trial, and presenting no witnesses at trial in defense of a suit by a subcontractor against a builder).

An instance in which it would appear that a violation of DR 6-101(A)(2) should have been charged but was not is Columbus Bar Ass'n v. DeVillers, 116 Ohio St.3d 33, 2007 Ohio 5552, 876 N.E.2d 530, where the respondent "failed to properly research the real estate title and did not realize that the property was not an estate asset, because it had passed to [the brother] upon [the sister's] death, and "signed a release of the mortgage [on the property] without determining whether [the brother] had ever repaid the money he owed from the 1991 mortgage."  Id. at paras. 4, 5 (bracketed material added).

Finally, in Allen County Bar Ass'n v. Williams, 92 Ohio St.3d 104, 748 N.E.2d 1101 (2001), respondent dismissed a criminal appeal on the day the appellate brief was due, and the adverse judgment against his client became final. Even though respondent had prior experience in criminal matters during his seventeen years of practice, he had never taken a criminal appeal. He also was unaware that he could have filed an "Anders [Anders v. California, 386 U.S. 738 (1967)] brief." The Court found that he had violated OH DR 6-101(A)(2) (inadequate preparation) but this seems to us to be more appropriately an OH 6-101(A)(1) (lack of competence) violation. See also Lorain County Bar Ass'n v. Kaderbek, 100 Ohio St.3d 295, 2003 Ohio 5754, 798 N.E.2d 607 (Court noted that respondent was "completely unprepared" to represent clients at first meeting of creditors, id. at para. 6; she was, however, not charged with violation of OH DR 6-101(A)(2)).

Given the limited number of decisions focusing on the duty of preparation in the disciplinary context, the malpractice cases again may provide some insight. In litigation, for example, questions often arise concerning the adequacy of the factual investigation undertaken by the lawyer. As the cases reflect, where the alleged lack of investigation flows from a reasonable professional judgment, it is not actionable. See, e.g., Stoklosa v. McGill, No. L-91-028, 1992 Ohio App. LEXIS 728 (Lucas Feb. 21, 1992) (discovery limited to plaintiff and one employee of defendant in original action is not actionable where discovery suggested plaintiff had no case as matter of law and complainant can point to no information that further discovery would have uncovered); Belcher v. Dooley, No. 10444, 1988 Ohio App. LEXIS 508 (Montgomery Feb. 16, 1988) (lawyer who in prosecuting a tort counterclaim for assault undertakes no discovery, believing he had sufficient information from his client and information from the opposing party contained in the pleadings and the police report of the incident, is not guilty of malpractice where the client fails to show information that should have been discovered but was not); Murphey, Young & Smith Co., L.P.A. v. Billman, Nos. 84AP-49, 84 AP-198, 1984 Ohio App. LEXIS 11643 (Franklin Nov. 20, 1984) (failure to interview certain witnesses is not malpractice but rather the exercise of trial strategy).

This standard for factual investigations is well illustrated by the Tenth District Court of Appeals in Canady v. Shwartz, 62 Ohio App.3d 742, 577 N.E.2d 437 (Franklin 1989). In Canady, a plaintiff brought a malpractice action against an attorney who had defended him in a criminal action. The court found that the plaintiff had presented sufficient evidence to withstand a summary judgment motion through an affidavit by his co-defendant in the criminal action, which affidavit stated that the co-defendant had been ready to testify that the plaintiff took no part in the criminal activity but was never contacted by the defense attorney, even though the co-defendant was subpoenaed and available to testify at plaintiff's criminal trial. Based on this testimony, a jury could reasonably conclude that the lawyer breached his duty to investigate thoroughly the facts of the plaintiff's criminal defense and to represent the client at trial. The court went on, however, "to stress that our decision in this case is not to be construed as imposing a duty on every attorney to interview every witness suggested by a criminal defendant."  Id. at 747, 577 N.E.2d at 440. Indeed, the plaintiff in Canady would have needed expert testimony to support his claim of lack of preparation had the attorney presented a reasonable explanation for believing that the co-defendant was unreliable and therefore did not need to be consulted or called. As the court suggested: "For example, had defendant spoken with the co-defendant's attorney or if defendant was familiar with the co-defendant's reputation for reliable testimony or if the nature of the case against plaintiff was such that the co-defendant's statement would be useless, such facts would require the testimony of an expert to demonstrate a breach of duty." Id. On the facts before the court, however, the lawyer believed the witness was unreliable and declined even to speak with him without any articulated justification for the belief.

Special problems arise where the lawyer's lack of adequate preparation occurs in the context of trial. Proceeding to trial without adequate preparation would force the lawyer to breach his ethical duties under Ohio Rule 1.1. On the other hand, the court has an interest in docket control and in protecting the rights of others in the litigation -- concerns that likely would be harmed should a continuance be granted. In a number of criminal cases decided while the OHCPR was in effect, defense lawyers, citing their OH DR 6-101(A)(2) duties, refused to proceed with their cases at trial and were held in contempt for failure to do so. To the extent a lawyer is unprepared through no fault of his own, a finding of contempt for failure to proceed is inappropriate. See, e.g.,  In re Sherlock, 37 Ohio App.3d 204, 525 N.E.2d 512 (Montgomery 1987) (public defender who was led to believe that trial would be set far in future, but then was given only two-days notice before trial and could not reach client during that period to get information necessary to prepare case, should not be held in contempt for failing to proceed, since to proceed would have violated former OH DR 6-101(A)(2) and 7-101(A)(3) and afforded ineffective assistance of counsel); State v. Gasen, 48 Ohio App.2d 191, 356 N.E.2d 505 (Hamilton 1976) (public defenders, who although they had no connection with case were ordered by trial judge to defend criminal defendant when assigned counsel did not appear at hearing, and who had no opportunity to review case file or confer with defendant, properly refused to proceed, citing several ethical principles including their ethical obligation to be adequately prepared). As the Gasen court stated: "We hold that the trial court erred as a matter of law in refusing to recognize the appellants' responsibilities under the Code of Professional Responsibility and conclude accordingly that the finding of contempt rendered below is contrary to law."  Id. at 195-96, 356 N.E.2d at 508. See also  In re Williams, No. 56908, 1990 Ohio App. LEXIS 3693 (Cuyahoga Aug. 23, 1990) (finding refusal to proceed based on lack of preparation not contempt, without discussion of whether lack of preparation was fault of attorney).

Where the lawyer is responsible for the lack of preparation, however, it will not constitute a defense.  State v. Christon, 68 Ohio App.3d 471, 589 N.E.2d 53 (Montgomery 1990) (former OH DR 6-101(A)(2) no defense to contempt citation where lawyers involved not adequately prepared solely due to their own inaction). As the Christon court explained: "We are not inclined to allow attorneys to place themselves in positions that are questionable under the Code of Professional Responsibility and then claim this very position immunizes them from contempt sanctions."  Id. at 477, 589 N.E.2d at 57. Similarly, a trial court does not abuse its discretion by denying a lawyer a continuance where the lawyer's going forward arguably would violate OH DR 6-101(A)(2), if the lack of preparation was due to the attorney's own inaction.  Bland v. Graves, 99 Ohio App.3d 123, 650 N.E.2d 117 (Summit 1994). Cf. Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617, 622 (1993) ("[A] judge's denial of a continuance because of counsel's unpreparedness is not an abuse of discretion if the unpreparedness was avoidable.").

An Ohio ineffective-assistance-of-counsel case focusing on lack of preparation concerns is State v. Blair, 171 Ohio App.3d 702, 2007 Ohio 2417, 872 N.E.2d 986 (Montgomery), where a public defender refused to defend his client on the ground that he was unprepared to proceed and that to do so would constitute ineffective assistance.  But, as in Christon, above, the court blamed the lawyer for the lack of preparation:

both attorneys assigned by the Office of the Public Defender had done little or nothing in the month during which that office had been assigned to the case.  No motions were filed, no notice of alibi was filed, and no demand for a jury trial was filed.  Given the fact that defense counsel admittedly did not prepare, and then sat silently by as Blair was convicted without any defense whatsoever, it can be presumed that appellant was prejudiced by defense counsel's inaction . . . .

Id. at para. 16. On the circumstances presented, the court's reference to those rare circumstances in which "counsel has done nothing more in the preparation of the case than be a warm body," id. at para. 13, seems appropriate. See also the Ohio federal case of Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003) (ineffective assistance of counsel; writ of habeas corpus granted unless defendant receives new penalty phase trial within 180 days), where the court focused on counsel's lack of preparation for the penalty phase:

Counsel presented no meaningful evidence by way of mitigation as a result of the failure to investigate and prepare, not as a result of trial strategy after thorough research. It is not just that the defense presented on Hamblin's behalf was ineffective; rather, Hamblin's counsel did not present any meaningful mitigation evidence at the sentencing phase because he was not prepared due to his lack of knowledge and understanding of the sentencing phase of a capital case. This total lack of preparation, investigation and understanding of sentencing caused counsel's deficient performance and extreme prejudice to Hamblin.

Id. at 493 (emphasis by the court).

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