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.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Ohio Legal Ethics Narrative
I. Client-lawyer relationship
Ohio Rule 1.2 differs from the Model Rule in a number of respects:
Division (a) is "subject to divisions (c), (d), and (e)" of the Rule, not just (c) and (d), as in MR 1.2(a). A new third sentence has been added, spelling out courtesies that do not violate the Rule. In the last sentence, Ohio deletes the language ", after consultation with the lawyer," following the words "client's decision".
There is no division (b); the language of MR 1.2(b) has been moved to Ohio Rule 1.2 cmt. .
Division (c) strikes "the" before "representation" and substitutes "a new or existing". At the end of the sentence, the Model Rule language has been altered by the deletion of "the client gives informed consent." and substituting its place "communicated to the client, preferably in writing.", following the words "circumstances and".
Division (d) changes the word "criminal" to "illegal"; "fraudulent, but a" to "fraudulent. A"; and "to make" to "in making".
Division (e) is not found in the Model Rule; it adds the language of former OH DR 7-105(A), supplemented with "professional misconduct allegations" after "criminal charges or".
The following sections of the former Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.2(a): DR 7-101(A)(1), EC 7-7, 7-8, 7-10.
[There is no Ohio Rule 1.2(b).]
The following sections of the former Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.2(c): None.
The following sections of the former Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.2(d): DR 7-102(A)(7), EC 7-4.
The following section of the former Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.2(e): DR 7-105.
- Primary Ohio References: Ohio Rule 1.2, ORC 4705.15
- Background References: ABA Model Rule 1.2
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.181, 2.212
- Commentary: ABA/BNA § 31:101, ALI-LGL §§ 14-18, 31, Wolfram § 9.2
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 § 2.181 (1996).
As a general rule, no formalities are necessary to establish a client-lawyer relationship. Thus, the lack of a retention arrangement, fee payment, or absolute confidentiality requirements is not dispositive in deciding whether an attorney-client relationship exists. Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App.3d 255, 611 N.E.2d 873 (Wood 1992); Landis v. Hunt, 80 Ohio App.3d 662, 610 N.E.2d 554 (Franklin 1992). See, in the disciplinary context, Cuyahoga County Bar Ass'n v. Ballou, 109 Ohio St.3d 152, 2006 Ohio 2037, 846 N.E.2d 519, where the Court found that an attorney-client relationship had existed despite nonpayment of the fee by the client. "Respondent advised the client that he could not continue representing him ... without payment." Id. at ¶ 4 (emphasis added). Further background on this issue is provided by the Board's conclusion that the client "had come to expect from their past professional relationship [a prior traffic case] that respondent would accept late payments while continuing to provide representation." Id. at ¶ 5. Justice Lundberg Stratton, dissenting, was not persuaded: "I do not agree that accepting late payment in one prior case form a drinking buddy is sufficient ground for creating a subsequent contract for new employment." Id. at ¶ 13 (emphasis in original).
Nor is it essential that there be an express written contract confirming the relationship (unless a contingent-fee arrangement is involved, see Rule 1.5(c)(1) and section 1.5:610). The Ohio Supreme Court confronted this issue in the context of whether an attorney could be found to have violated former OH DR 6-101(A)(3) (neglect of legal matter entrusted to the attorney) in the absence of an express written contract or full payment of a retainer. In Cuyahoga Bar Ass'n v. Hardiman, 100 Ohio St.3d 260, 2003 Ohio 5596, 798 N.E.2d 369, the Court answered in the affirmative:
An attorney-client relationship may be created by implication based upon the conduct of the parties and the reasonable expectations of the person seeking representation.
Id. at syllabus. (Interestingly, Hardiman was not cited in Ballou, discussed above, which likewise involved a violation of DR 6-101(A)(3) and the question whether there was an employment relationship, given nonpayment of the retainer and the client's expectation that late payment would be acceptable based on prior representation. See also Hamrick v. Union Twp., 79 F. Supp.2d 871, 876 (S.D. Ohio 1999) (attorney-client relationship found; "[i]t makes absolutely no difference that [the lawyer] never met with Defendant McMillan, never opened a file on him, or never signed an Agreement of Representation").
To make this determination, the courts look to see if the client sought to form a client-lawyer relationship, David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 79 Ohio App.3d 786, 798, 607 N.E.2d 1173, 1180 (Cuyhoga 1992) ("where a person approaches an attorney with the view of retaining his services, an attorney-client relationship is created"), and if the lawyer responded in a way that could create a reasonable belief by the client that the relationship has been created. Hardiman, 100 Ohio St.3d 260, 2003 Ohio 5596, 798 N.E.2d 369, at para. 10 ("The determination of whether an attorney-client relationship was created turns largely on the reasonable belief of the prospective client."). See Stuffleben v. Cowden, 2003 Ohio 6334, 2003 Ohio App. LEXIS 5676 (Cuyahoga) ("it is a question of both what the putative client believed and whether or not that belief was reasonable based on the surrounding circumstances," id. at para. 22); Lillback v. Metro. Life Ins. Co., 94 Ohio App.3d 100, 640 N.E.2d 250 (Montgomery 1994); Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App.3d 255, 611 N.E.2d 873 (Wood 1992). Some factors the courts look for in making this assessment are
whether the client (or prospective client) shared confidential information with the attorney, Taylor v. Shelton, 172 Ohio St. 118, 121, 173 N.E.2d 892, 895 (1961) ("[C]ommunications made by a person to an attorney with the view of retaining the attorney to act on his behalf constitute privileged communications. It might well be said that a tentative attorney-client relationship exists during such period."); Landis v. Hunt, 80 Ohio App.3d 662, 669, 610 N.E.2d 554, 558 (Franklin 1992) ("the determination that the relationship invoked such trust and confidence in the attorney that the communication became privileged and, thus, the information exchanged was so confidential as to invoke an attorney-client privilege" is "[a]n essential element as to whether an attorney-client relationship has been formed"). Compare McGuire, Draper, Hollenbaugh & Briscoe Co., L.P.A., 2002 Ohio 6170, 2002 Ohio App. LEXIS (Highland) (applying Landis test, no attorney-client relationship existed where no evidence that appellant communicated confidential information to attorneys).
whether the lawyer provided some form of legal advice to the client. "An attorney-client relationship exists in the traditional sense when 'an attorney advises others as to their legal rights, a method to be pursued, the forum to be selected, and the practice to be followed for the enforcement of their rights.'" Sayyah v. Cutrell, 143 Ohio App.3d 102, 111, 757 N.E.2d 779, 786 (Brown 2001) (quoting Landis).
Issues concerning the attorney-client relationship when the client is an entity, including both advertent and inadvertent relationships with entity constituents, are discussed in sections 1.13:200, :400-:500.
At times, the law may also recognize a derivative client-lawyer relationship where a third person is considered in privity with the retaining client. If the retaining client owes a fiduciary duty to third parties, the lawyer who assists in carrying out those fiduciary duties is treated as having a client relationship with the third party as well, at least for malpractice purposes. Arpadi v. First MSP Corp., 68 Ohio St.3d 453, 628 N.E.2d 1335 (1994) (because general partner owes fiduciary relationship to limited partners, limited partners are in privity with general partner, and lawyer-client relationship between attorney and general partner extended to limited partners); Elam v. Hyatt Legal Servs., 44 Ohio St.3d 175, 541 N.E.2d 616 (1989) (because executor of estate owes fiduciary duty to beneficiaries whose interests have vested, beneficiaries are in privity with executor, and client-lawyer relationship between attorney and executor extends to beneficiaries). Legislative action in the wake of Elam and Arpadi (which have, to date, been ignored by the courts) are detailed in section 1.1:410, at "Developments in Ohio subsequent to Elam and Arpadi."
Where a person approaches someone who is a lawyer to act on their behalf in a nonlegal capacity, the client-lawyer relationship does not arise. Petersen Painting & Home Improvement, Inc. v. Znidarsic, 75 Ohio App.3d 265, 599 N.E.2d 360 (Geauga 1991) (nonlaw-related dealings between lawyer and former client were not part of attorney-client relationship). See also David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 79 Ohio App.3d 786, 607 N.E.2d 1173 (Cuyahoga 1992) (question of fact whether lawyer was approached to act as client's attorney, or merely as expert witness and therefore outside attorney-client relationship).
Once established, an attorney-client relationship remains in effect until effectively terminated. See section 1.2:270.
The subject of client-lawyer agreements is dealt with in two different parts of the Rules -- Rule 1.2(c) and Rule 1.5(b).
Ohio Rule 1.2(c) authorizes a lawyer to limit the scope of a new or existing representation, so long as the limitation is reasonable and is communicated to the client, "preferably in writing."
As with the Rule 1.2(c) limitation, a writing is likewise "preferabl[e]" in satisfying the communication to the client required (with a limited exception) by Rule 1.5(b), which states that
the nature and scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, . . . unless the lawyer will charge a client whom the lawyer has regularly represented on the same basis as previously charged.
Rule 1.5(b) is discussed in more detail in Section 1.5:500 infra.
As stated above, a Rule 1.2(c) limitation on the scope of the representation, if utilized, must be communicated to the client. Should the lawyer decide to limit the representation, the comments provide further guidance.
Comment  speaks to the requirement that any limitation must be reasonable -- thus, the time allotted to any limited representation "must be sufficient to yield advice upon which the client could rely." Ohio Rule 1.2 cmt .
Although a lawyer cannot, through use of a limited representation agreement, exempt himself from the Rule 1.1 duty to provide competent representation, the limitation is a factor to be considered in determining the knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Id. Comment  is further discussed in section 1.2:510.
The preferred written confirmation of limitation of representation, if used, "may be any writing that is presented to the client that reflects the limitation, such as a letter or electronic transmission addressed to the client or a court order." Ohio Rule 1.2 cmt [7A]. A court order appointing a lawyer is deemed sufficient to confirm the scope of that representation. Id. The comment further provides that a "form or checklist" may be used by the lawyer, specifying "the scope of the client-lawyer relationship and the fees to be charged." Id.
Finally, Comment  counsels that "[a]ll agreements concerning a lawyer's representation of a client must accord with the Ohio Rules of Profession Conduct," citing, "e.g., Rules 1.1, 1.8 and 5.6."
Similar to the new Rule, the former OHCPR (as well as the Supreme Court in Cuyahoga Bar Ass'n v. Hardiman, 100 Ohio St.3d 260, 2003 Ohio 5596, 798 N.E.2d 369, at ¶ 12) expressed a preference for written representation agreements between client and lawyer (OH EC 2-18), but there was no requirement that such contracts be in writing. A writing requirement was and is imposed by statute, however, with respect to tort actions in which the lawyer is charging a contingent fee, ORC 4705.15, and is now mandatory for all contingent-fee agreements. Ohio Rule 1.5(c)(1). See section 1.5:610. See also Rule 1.5(b), discussed at section 1.5:500.
For guidance on what one might include in a retainer agreement, see Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 3.4(A), at 74 (1992). The other side of the coin -- where no contract is effected -- can be covered by a non-engagement letter, to make clear that no attorney-client relationship was entered into. Id. at 75.
Rules generally applicable to lawyer-client contracts are set forth in 1 Restatement (Third) of the Law Governing Lawyers § 18 (2000), including the rule that such a contract should be construed "as a reasonable person in the circumstances of the client would have construed it." Id. at § 18(2). As the Restatement notes, many courts have stated that if the client-lawyer contract is found to contain ambiguities, they should be resolved against the lawyer. See, e.g., Jacobs v. Holston, 70 Ohio App.2d 55, 434 N.E.2d 738 (Lucas 1980) (dictum). The Restatement explains, however, that this maxim "can be taken to mean that the principle comes into play only when other means of interpreting the contract have been unsuccessful," whereas the rule of § 18(2) "governs the construction of the contract in the first instance." Restatement § 18 cmt. h.
Where the contract is made (or modified) after representation has begun, the client may avoid it unless the lawyer shows that the terms are fair and reasonable; where the contract is made after representation is completed, the client may avoid it if he or she was not informed of material facts. 1 Restatement (Third) of the Law Governing Lawyers § 18(1)(a)-(b) (2000). An Ohio case under the former OHCPR, involving an attempt to collect a contingent fee after the case was completed by conditioning return of the client's files (to which the client has an absolute right after discharge, see Ohio Rule 1.16(b)) on a guaranty of such payment, was Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d 431 (1994) (guaranty of payment of contingent fee held unenforceable; firm's recovery limited to quantum meruit basis only).
For discussion of client-lawyer fee agreements and communication regarding fees, see sections 1.5:210 and 1.5:500.
The general duties of an Ohio lawyer to his or her client are discussed at various points of this ethics treatise and include the duties of:
competence (Ohio Rule 1.1), discussed at section 1.1:200;
diligence (Ohio Rule 1.3), discussed at section 1.3:200;
communication (Ohio Rule 1.4), discussed at section 1.4:200;
confidentiality (Ohio Rule 1.6), discussed at section 1.6:200;
loyalty (Ohio Rule 1.7), discussed at section 1.7:210; and
safekeeping of property (Ohio Rule 1.15), discussed at section 1.15:200.
The Restatement covers a lawyer's duties to the client at 1 Restatement (Third) of the Law Governing Lawyers § 16 (2000). In addition to the duties listed above, the Restatement notes that the lawyer must also "fulfill valid contractual obligations to the client" and generally
proceed in a manner reasonably calculated to advance a client's lawful objectives, as defined by the client after consultation[.]
1 Restatement (Third) of the Law Governing Lawyers § 16(1), (4) and cmts. c & f (2000). Allocation of authority in fulfilling these obligations is treated in Ohio Rule 1.2(a). See discussion at section 1.2:310.
There is nothing in the new Ohio Rules of Professional Conduct (or in the Model Rules or the former OHCPR, for that matter) touching on the client's duty to the lawyer. An overview on this subject is provided at 1 Restatement (Third) of the Law Governing Lawyers § 17 (2000), where the basic rules are set forth, with cross-references to greater detail in other sections of the Restatement. In a nutshell, in matters covered by the representation, the client must:
(1) compensate the lawyer for services and expenses;
(2) indemnify the lawyer where the client has exposed the lawyer to liability without fault of the lawyer (e.g., indemnification for proper expenditures made on the client's behalf, such as court reporter fees); and
(3) satisfy valid contractual obligations to the lawyer.
Id. at § 17(1)-(3).
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 § 2.212 (1996).
The lawyer-client relationship can be terminated by completion of the representation, discharge by the client, or withdrawal by the attorney. While Ohio Rule 1.16 provides substantial guidance as to the procedural protections surrounding termination, (see section 1.16:500), it does not address how to determine whether the representation has been effectively terminated.
Ascertaining when the representation has been terminated is important for several reasons. First, termination of the relationship may trigger a right to fees on the lawyer's part, as well as an obligation to return monies, papers, and other property belonging to the client. See sections 1.15:200 and 1.16:500-:600. Second, termination changes the duties owed by the lawyer from those expansive duties owed a current client to the more limited duties owed a former client. For example, where representation is continuing, the more demanding current-client conflict rules govern the attorney's conduct; if representation has ended, the more permissive former-client conflict rules apply. Columbus Credit Co. v. Evans, 82 Ohio App.3d 798, 613 N.E.2d 671 (Franklin 1992) (addressing relationship between effective termination of employment and multiple-client conflicts under former OHCPR). Third, the completion of the representation as to a particular undertaking or transaction may mark the time from which the statute of limitations will begin to run with respect to lawyer malpractice alleged to have occurred during the course of the representation. Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989). See section 1.1:300.
Often, termination of the relationship will be quite clear to all concerned, as where the lawyer has been hired to accomplish a discrete task and has done so, or where the client explicitly discharges the attorney. See Mahoning County Bar Ass'n v. Mogul, 79 Ohio St.3d 369, 681 N.E.2d 1331 (1997) (respondent was discharged by clients but nevertheless failed to withdraw from litigation on behalf of clients until eighteen months after being fired; conduct violated mandatory-withdrawal-on-discharge provisions of former OH DR 2-110(B)(4), now Ohio Rule 1.16(a)(3)). A closing letter from the lawyer to the client may help to establish the date of termination. Conduct, however, also can signal termination of the relationship. Triplett v. Benton, 2003 Ohio 5583, 2003 Ohio App. LEXIS at para. 13. (Franklin) ("Any conduct that dissolves the essential mutual confidence between the attorney and client signals the termination of that relationship."). Compare Lucas v. Kurt, 72 Ohio App.3d 511, 595 N.E.2d 478 (Lucas 1991) (hiring of new counsel effectively terminated attorney-client relationship with initial counsel), with Feudo v. Pavlik, 55 Ohio App.3d 217, 563 N.E.2d 351 (Cuyahoga 1988) (mere discussions with new attorney about case, without knowledge of original lawyer, did not signal termination of relationship). See Triplett supra (client's stated intention to file malpractice action terminated relationship); DiSabato v. Thomas M. Tyack & Assocs. Co., L.P.A., No 98 AP-1282, 1999 Ohio App. LEXIS 4212, at *7 (Franklin Sept. 14, 1999) ("retaining another attorney to file a suit regarding the same subject matter is an affirmative act demonstrating to a reasonable person that the attorney-client relationship had ended"); Brown v. Johnstone, 5 Ohio App.3d 165, 450 N.E.2d 693 (Summit 1982) (client initiation of grievance proceeding against lawyer was indicative of termination of relationship).
In more ambiguous situations, the question of whether the relationship has terminated becomes a question of fact. Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385, 528 N.E.2d 941 (1988); Sinsky v. Gatien, No. 19795, 2000 Ohio App. LEXIS 3903 (Summit Aug. 30, 2000). See also Artromick Int'l, Inc. v. Drustar, Inc., 134 F.R.D. 226 (S.D. Ohio 1991) (thoughtful discussion of termination of client-lawyer relationship in context of motion for disqualification; on facts presented, court found that attorney-client relationship had terminated; therefore, motion by former client (present plaintiff) to disqualify firm representing present defendant, because one of its lawyers had previously represented present plaintiff in unrelated matters, was denied).
An interesting case confronting the issue of determining whether termination has occurred in ambiguous situations is Cuyahoga County Bar Ass'n v. Ballou, 109 Ohio St.3d 152, 2006 Ohio 2037, 846 N.E.2d 519. In Ballou, the respondent was found to have violated former OH DR 6-103(A)(3) (neglect) for failing to appear on a client's behalf at an eviction proceeding. But before the eviction hearing took place,
[r]espondent advised the client that he could not continue representing him and would not appear in court on the client's behalf without payment [of the retainer]. Respondent also told the landowner's lawyer that he no longer represented the client because he had not been paid.
Id. at ¶ 4. It was also noted by the Board that respondent did not confirm his decision to withdraw in writing to either the client or opposing counsel as he should have done. Id. at ¶¶ 5, 8.
On these facts, the Court upheld the finding of neglect of the client's matter by not attending the eviction hearing, which took place after respondent's purported withdrawal. Although not expressly saying so, it is implicit in this determination that the steps taken by respondent to withdraw were ineffective to accomplish termination of his attorney-client relationship.
The lone dissenter, Justice Lundberg Stratton, forcefully disagreed. After noting her belief that the client's failure to pay the retainer was a breach of their contract and that the Court's reliance on the failure to confirm the withdrawal in writing was inconsistent with the holding in Trumbull County Bar Ass'n v. Donlin, 76 Ohio St.3d 152, 666 N.E.2d 1137 (1996) (disciplinary rules do not require that notice of withdrawal be reduced to writing), Justice Lundberg Stratton stated as follows:
[T]he respondent told the former client and opposing counsel, that he would no longer actively represent the client in this matter. He specifically told the client that he would not appear in court on his behalf. The record does not reflect that respondent even filed an entry of appearance in the pending eviction proceeding. Nevertheless, the majority determines that respondent neglected a legal matter by failing to appear at the hearing.
Id. at para. 16. The Justice also found this conclusion to be "directly contradict[ory]" of the holding in Smith v. Conley, 109 Ohio St.3d 141, 2006 Ohio 2035, 846 N.E.2d 509 (attorney-client relationship terminated for malpractice statute-of-limitation purposes when lawyer informed client, by telephone and two letters memorializing telephone conversation, that he would no longer represent him; termination found even though lawyer remained as counsel of record in case and had not obtained permission to withdraw as required by local court rule). (The Conley case is further discussed in section 1.1:300 at "Accrual of Claim.")
Justice Lundberg Stratton's concern was that Ballou, with its seeming conflict with Donlin and Smith, "sends a confusing message to the bar. 109 Ohio St.3d at ¶ 15. In sum, Ballou demonstrates that reasonable justices can come to different conclusions on the termination issue when the circumstances are ambiguous.
- Primary Ohio References: Ohio Rule 1.2(a); OH Civ R 60(B)(1), (B)(5)
- Background References: ABA Model Rule 1.2(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.20-7.22; Guttenberg & Snyder, The Law of Professional Responsibility in Ohio §§ 6.1-6.6
- Commentary: ABA/BNA § 31:306; ALI-LGL §§ 21-23, 25-29; Wolfram §§ 4.4, 4.6
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 § 7.20 (1996).
In representing a client, the lawyer's role is to further the client's objectives through legally permissible means. A basic provision in the Rules implementing this obligation is Ohio Rule 1.2(a), which provides in pertinent part as follows:
Subject to divisions (c), (d), and (e) of this rule, a lawyer shall abide by a client's decisions concerning the objectives of the representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take action on behalf of the client as is impliedly authorized to carry out the representation. . . . A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision as to the plea to be entered, whether to waive a jury trial, and whether the client will testify.
Consultation between lawyer and client on the means of achieving the goals of the representation is required by Ohio Rule 1.4(a)(2). This (together with other, nonmandatory, consultation) often results in agreement between them as to the objectives of the representation and the means to be employed to reach them. Should a disagreement arise, however, the client, in most instances, is entitled to make the final decision. Accommodating the client's decision-making authority with the lawyer's personal conscience and role in the legal system can be difficult at times. See section 1.2:400.
It must be recognized that a client has no right to demand that her lawyer perform certain actions. The lawyer cannot assist the client to achieve illegal or fraudulent ends, Ohio Rule 1.2(d) (see sections 1.2:610-:620), nor can the lawyer pursue legal ends through impermissible means. If the client insists on behavior that the lawyer reasonably believes to be illegal or fraudulent, the lawyer may withdraw from the representation, Ohio Rule 1.16(b)(2) (see section 1.16:320); if the lawyer knows it to be illegal or fraudulent, he or she must withdraw. Ohio Rule 1.16(a)(1). See section 1.16:230.
Further, a lawyer needs a certain amount of latitude in dealing with other attorneys, third parties, and the court. Acting in a courteous and professional manner in those dealings violates no duty to the client, and the client has no right to insist that the lawyer behave otherwise. The third sentence of Rule 1.2(a) so states. See section 1.2:330. The only recourse for a client dissatisfied with the lawyer's conduct in this regard is to discharge the attorney.
Beyond these areas, a wide variety of decisions remain to be made about the objectives of the representation and the means to achieve them. Because in the relationship the client is the principal, whose interests will be directly affected by the outcome of the representation, the Rules grant primary decision-making responsibility to the client. As stated in Ohio Rule 1.2 cmt. , the client has "the ultimate authority" concerning the legal objectives of the representation. Nevertheless, the lawyer is the one called upon to carry out the representation on the client's behalf. Deference to the attorney's expertise, as well as the lawyer's need to maintain personal and professional integrity, suggests that certain issues should be within the attorney's authority to decide. Ohio Rule 1.2(a) & cmts. -[4A] seek to accommodate these competing concerns.
Allocation of decision-making responsibility raises special problems and difficulties where the client is an organization or has diminished capacity. See sections 1.13.200 and 1.14:200, respectively.
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 § 7.21 (1996).
There are certain decisions that the law clearly recognizes are for the client. While the lawyer is encouraged to advise the client with respect to these concerns, the final decision-making responsibility is that of the client.
Civil actions: In the civil arena, Rule 1.2(a) states that the lawyer "shall abide" by the client's decision whether to settle a matter. Accord, that settlement was the client's decision under the former OHCPR as well, Goldauskas v. Elyria Foundry Co., 145 Ohio App. 3d 490, 763 N.E.2d 645 (Lorain 2001).
The client's right to decide whether to accept a settlement may work to the lawyer's detriment at times. It is not unethical, for example, for defense counsel to make an offer of settlement that simultaneously addresses the merits of the dispute and the defendant's potential liability for attorney fees. Evans v. Jeff D., 475 U.S. 717 (1986). Even if the settlement offer as to the merits is conditioned on a complete waiver of the plaintiff's right to seek an award of statutory attorney fees from the defendant, plaintiff's lawyer's duty is to exercise independent professional judgment in counseling the client, and to abide by the client's decision as to the settlement. Id. at 727-28 & n.14. See Cincinnati Bar Ass'n Op. 92-93-08 (n.d.) (discussing this issue and ways in which lawyer can protect his interest consistent with these ethical restrictions). Similarly, in a contingent-fee case, the lawyer must abide by the client's decision to accept a settlement, even if the lawyer would like to pursue the case further in the hope of securing a higher recovery, to which the contingency-fee percentage would be applied. Paxton v. Dietz, No. 84 AP-972, 1985 Ohio App. LEXIS 7938 (Franklin Mar. 28, 1985) (relying on former OH EC 7-7 & 7-8); see Michael T. Tully Co., L.P.A., v. Dollney, 42 Ohio App.3d 138, 537 N.E.2d 242 (Lorain 1987) (client who had not recovered anything on his contingent-fee claim could reject settlement offer and discharge lawyer without incurring any liability to lawyer for fee). The same result follows where the client settles the case without recovering any damages and dismisses the attorney. Hawthorne v. Benton Ridge Tel. Co., No. 99 AP-1476, 2000 Ohio App. LEXIS 5193 (Franklin Nov. 9, 2000). See also Gruenspan Co., L.P.A. v. Thompson, 2003 Ohio 3641, 2003 Ohio App. LEXIS (Cuyahoga) (commenting on presence of evidence tending to show that lawyer had refused to settle "in order to increase his contingency fee," id. at ¶¶ 70, 78).
Settling a case without client authorization, on the other hand, is a disciplinary violation (Rule 1.2(a)), as it was under the OHCPR. See, e.g., Office of Disciplinary Counsel v. Gunnoe, 79 Ohio St.3d 191, 680 N.E.2d 974 (1997) (settling without authorization from client violated former OH DR 7-101(A)(3)); Cuyahoga County Bar Ass'n v. Josselson, 43 Ohio St.3d 154, 539 N.E.2d 625 (1989) (entering into settlement that client had rejected violated OH DR 6-101(A)(1) & (A)(3)). To assure that the client can fully exercise this settlement authority, the lawyer must relay all settlement offers to the client. Rule 1.2 cmt. ; Rule 1.4(a)(1). See section 1.4:400. If the lawyer fails to do so and settles without the client's authority, the client may, in certain circumstances, nevertheless be bound by the result, even though the lawyer is subject to sanction for doing so. Compare Argo Plastic Prods. Co. v. City of Cleveland, 15 Ohio St.3d 389, 474 N.E.2d 328 (1984) (unauthorized settlement enforced), with Bar Ass'n of Greater Cleveland v. Kless, 17 Ohio St.3d 21, 476 N.E.2d 1035 (1985) (sanctioning attorney who settled without authority in Argo). Unauthorized settlement (including Argo) is further discussed in section 1.2:340.
Nor can a lawyer nullify the client's authority over settlement decisions by including in the contingent-fee agreement a provision that prohibits the client from settling "without complete prior approval of the lawyer." Gruenspan Co., L.P.A. v. Thompson, 2003 Ohio 3641, 2003 Ohio App. LEXIS (Cuyahoga). "That provision was clearly voidable." Id. at ¶ 67.
Criminal cases: Also pursuant to Rule 1.2(a), a criminal defendant has the ultimate authority to make such fundamental decisions as what plea to enter (to make this right meaningful, counsel should convey all plea bargains offered and provide guidance on their merits; failure to convey an offer, unless the failure is adequately explained, may constitute ineffective assistance of counsel, State v. Manning, No. WD-84-84, 1985 Ohio App. LEXIS 8328 (Wood July 12, 1985)), to waive the right to a jury trial, or to take the stand. The Supreme Court in Jones v. Barnes, 463 U.S. 745 (1983), states that it is also the client's right to decide whether to pursue an appeal.
The U.S. Supreme Court has held, however, that a lawyer, who in a capital case proposed a defense strategy of conceding guilt in order to focus on avoiding the death sentence but was unable to get his client's express approval, did not thereby render ineffective assistance of counsel in violation of the Sixth Amendment. Florida v. Nixon, 543 U.S. 175 (2004). Contrary to the position of the Florida Supreme Court that this conduct violated the rule of the Barnes case supra (entering guilty plea is decision defendant must make), Justice Ginsburg, writing for a unanimous Court, concluded that pursuing the concession-of-guilt strategy was not tantamount to a guilty plea, because the defendant, unlike defendants who plead guilty, retained the right to appeal trial errors and to a trial of the guilt phase, thereby separating the potentially prejudicial evidence of guilt from the penalty phase. The Court further emphasized that the lawyer did on several occasions propose the strategy to defendant, but defendant was unresponsive -- he neither consented nor objected. In these circumstances, there is "no blanket rule demanding the defendant's explicit consent. Instead, if counsel's strategy, given the evidence bearing on defendant's guilt, satisfies the Strickland [Strickland v. Washington, 466 U.S. 668 (1984)] standard, that is the end of the matter; no tenable claim of ineffective assistance would remain." Id. at 563.
Limits from other Ohio Rules: The foregoing discussion does not exhaust the list of matters over which the client has decision-making authority. Other Rules also delineate issues for the client to decide. If other grounds for withdrawal recognized in the Rules are not present, a lawyer cannot withdraw from representation without the client's consent. Ohio Rule 1.16(b)(7). See section 1.16:320. Client consent also is necessary for a lawyer to split fees with another attorney outside his firm, Ohio Rule 1.5(e)(2), see section 1.5:800, or to continue the representation in the face of a conflict of interest. Ohio Rules 1.7(b)(2) and 1.8(a)(3), (b), (f)(1), (g), (h)(2)(iii). See sections 1.7:240, 1.7:500, 1.8:220, and 1.8:710.
Providing information necessary to client decision-making: The primacy of client decision-making in the lawyer-client relationship, particularly with respect to the objectives of the representation, is expressly recognized in Ohio Rule 1.2(a). Substantial communication by the lawyer is required to assure that the client can exercise this authority in a meaningful manner. Ohio Rule 1.4(a). See generally Bd. of Comm'rs on Grievances & Discipline Op. 88-30, 1988 Ohio Griev. Discip. LEXIS 13, at *1 (Dec. 16, 1988) ("Attorneys have an obligation to exert their best efforts to insure that their clients remain fully informed of all relevant considerations regarding the representation."). At times, the failure to meet this duty of communication will subject the lawyer to sanction. See sections 1.3:200 and 1.4:200-:400. The lawyer is encouraged to consult with the client about both the legal and nonlegal implications of a contemplated course of action. Ohio Rule 2.1. See section 2.1:300. While not expressly covered by the OHRPC, it would seem that guidance provided in former OH EC 7-8 -- that "the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client" -- is generally consistent with the principles set forth in Ohio Rule 1.2(a).
Client instructions: In some areas, a lawyer is free to act without explicit instructions from the client. Once instructed by the client, however, the lawyer is duty-bound to follow those instructions. Failure to follow the specific instructions of a client can give rise to malpractice liability. For example, where a client seeking a divorce explicitly requested and received a promise from the attorney to keep the proceedings out of the newspaper, and the attorney ignored that instruction and caused a paper to publish a notice of the pending divorce, the attorney's action was a breach of his duty and contrary to former OH EC 7-8 (now see Rule 1.4(a)(3)), which called for the lawyer to inform the client of "relevant considerations," -- in this case "the legal necessity of the publication." This failure stated a cause of action for malpractice. McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295, 1297 (1984) (per curiam). Accord Hosfelt v. Miller, No. 97- JE-50, 2000 Ohio App. LEXIS 5506 (Jefferson Nov. 22, 2000) ("An attorney who is specifically instructed by a client should follow those instructions with reasonable care, or he or she may be liable for all damages proximately caused by the failure," id. at *14, citing McInnis).
Another disciplinary case under the Code falling in this category is Cuyahoga County Bar Ass'n v Britt, 109 Ohio St.3d 97, 2006 Ohio 1933, 846 N.E.2d 39. In Britt, respondent was hired, inter alia, to represent a licensed practical nurse in connection with administrative disciplinary proceedings brought against the nurse. While the opinion does not disclose explicitly that the client "instructed" respondent to request a hearing before the nursing board, it does make clear that the client "desperately wanted a hearing" in order to attempt to regain an unrestricted license to practice. Id. at ¶ 5. To this end, upon receipt of the nursing board's Notice for Opportunity for Hearing, the client "immediately advised respondent by telephone and personally delivered the notice to him." Id. Despite these facts, "[r]espondent did not file the hearing request, because, in the exercise of his professional judgment, he had decided that appearing before the nursing board would not advance his client's interests." Id. at ¶ 6. This decision "likely" resulted in the client receiving a more severe sanction then would have been the case had a hearing been requested in accordance with the client's desires. Id. at ¶ 13. While it might be argued that the decision on hearing or no hearing is a tactical one that is properly for the lawyer, not the client, there can be a little doubt that the lawyer's conduct would have violated Rule 1.2(a) had it been applicable -- at a minimum, the respondent failed the obligation to "consult with the client as to the maens by which [the objectives of the representation] are to be pursued." This failure was particularly glaring in the Britt case, given the client's strong desires in favor of a hearing.
The client's instructions, of course, must be valid to be binding on the lawyer. For example, following the clients' direction to disburse funds to them will not serve as an excuse for violating the terms of an escrow agreement under which the lawyer is holding the proceeds of the sale of property when a problem with the sale arises. Ohio Rule 1.15(e) & cmt. . Under the former OHCPR, see City of Ravenna v. Fouts, No. 92- P-0098, 1994 Ohio App. LEXIS 379 (Portage Feb. 4, 1994) (lawyer cannot "hide behind" former OH EC 7-7 and OH EC 5-21 with "lame excuse" that "clients made him do it," id. at *6). Citing and quoting Fouts, the court in Shiepis Clinic of Chiropractic, Inc. v. Stevenson, No. 1995 CA 00343, 1996 Ohio App. LEXIS 3707 (Stark July 8, 1996), likewise held that the attorney could not use his client's instructions to excuse his failure to pay medical fees to the provider from settlement proceeds.
The result under the Rules is consistent with the holding in the Shiepis case. Thus, to the extent a lawyer holds client funds out of which the client has agreed to pay a third party, and the client later decides to abrogate that agreement, the lawyer's obligation is again measured by Rule 1.15(e) and cmt. . Under division (e) the lawyer must hold the funds in accordance with Rule 1.15(a) until the dispute is resolved. Comment  provides that where a third party has a lawful claim to the property, the lawyer
may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved.
Ohio Rule 1.15 cmt. . The appropriate course for the lawyer in this situation is to seek resolution from a court by filing an interpleader action. Id. This manner of resolution of the problem is in accord with that reached by the Board of Commissioners in Opinion 95-12, where the Board opined that the attorney should hold the funds until their proper owner is determined by mediation, arbitration, or interpleader. Bd. of Comm'rs on Grievances & Discipline Op. 95-12, 1995 Ohio Griev. Discip. LEXIS 3 (Oct. 6, 1995).
Nondisciplinary allocation of authority: Questions of the allocation of authority between the lawyer and the client often arise outside of the disciplinary context. While not directly on point, such decisions nevertheless may serve as a guide for the kinds of decisions that should be left to the client.
For example, without express authorization, the lawyer has no authority to endorse the client's name on a check tendered to effect a settlement. Morris v. Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 517 N.E.2d 904 (1988) (syllabus). And the disposition of the client's real property requires the express authorization of the client. See Morr v. Crouch, 19 Ohio St.2d 24, 249 N.E.2d 780 (1969); Ottawa County Comm'rs v. Mitchell, 17 Ohio App.3d 208, 478 N.E.2d 1024 (Ottawa 1984).
The Restatement position with respect to authority reserved to the client is set forth in 1 Restatement (Third) of the Law Governing Lawyers § 22 (2000).
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 § 7.22 (1996).
Ohio Rule 1.2(a), while recognizing that the lawyer must "abide by the client's decisions" as to objectives of the representation, implicitly gives the lawyer sway as to the means by which they are to be achieved. Regarding the means used to achieve the desired ends, Comment  notes that
[c]lients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters.
Rule 1.2 cmt. .
Division (a) also recognizes the right of the lawyer to "take such action on behalf of the client as is impliedly authorized to carry out the representation." This "implied authorization" covers a lot of ground, as to which see below.
Further, Rule 1.2(a) expressly states that
A lawyer does not violate this rule by acceding to requests of opposing counsel that do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, and by treating with courtesy and consideration all persons in the legal process.
Ohio Rule 1.2 cmt. [4A] emphasizes that these acts of courtesy and professionalism do not breach any duty to the client, and the client cannot compel the lawyer to act otherwise. Nor, of course, can the client demand that the lawyer perform or assist unlawful acts. See Rule 1.2(d) and section 1.2:600. Subject to these limitations, the client can authorize the lawyer in advance to take specific action on the client's behalf. See Ohio Rule 1.2 cmt. .
The lawyer's implied authority to do those things necessary to carry out the representation (Rule 1.2(a) & cmt. ) is seen most often in the context of matters requiring immediate decision by the lawyer -- typically in the course of trial, hearings, depositions, and other litigation-related matters where consultation is not practicable. See 1 Restatement (Third) of the Law Governing Laywers § 23(2) & cmt. d (2000).
This implied authority is recognized in Ohio (and other) precedent, which confirms the lawyer's power to act when quick decisions are needed and when the decisions to be made are ones for which the special expertise of a lawyer weighs more heavily in the resolution than the general experience of a layperson. See, e.g., Blake v. Ingraham, 44 Ohio App.3d 38, 39, 540 N.E.2d 759, 760 (Medina 1989) ("It is the attorney, and not the client, who, due to his professional education and experience, is in charge of litigation."). See generally Jones v. Barnes, 463 U.S. 745 (1983) (finding no constitutional violation in lawyer's refusal to include in appeal brief nonfrivolous issues that the client insisted on raising, and stressing the need for educated professional judgment in determining what issues should be raised on appeal and how they should be presented). Accord, regarding conceding guilt in order to focus on penalty phase in capital case, Florida v. Nixon, 543 U.S. 175 (2004), discussed at section 1.2:320. The court reached a similar result in the malpractice context in Hahn v. Jennings, 2004 Ohio 4789, 2004 Ohio App. LEXIS 4320 (Franklin). The plaintiffs there argued that their former lawyer committed malpractice when he ignored their insistence that, in the underlying appeal, he brief and argue the Magnuson-Moss express-warranty issue. The court of appeals disagreed:
Although [former] DR 7-101(A)(1) provides that a lawyer should not intentionally fail to seek the lawful objectives of his client, DR 7-101(B)(1) also permits a lawyer to exercise his professional judgment in failing to assert a position of his client. . . . [W]e cannot say that his decision to forego appeal of their Magnuson-Moss express warranty argument constituted legal malpractice.
Id. at ¶ 28.
The lawyer's authority to make decisions in the representation is most clearly seen in the context of a trial. "Decisions about what evidence to present and which witnesses to call . . . are committed to counsel's professional judgment." State v. Williams, 99 Ohio St.3d 493, 2003 Ohio 4396, 794 N.E.2d 27, at para. 127 (assessing ineffective-assistance-of-counsel claim). This mirrors the advice given in Guttenberg and Snyder:
In the area of litigation an attorney is responsible for making all decisions concerning tactics and strategy in the preparation and execution of the law suit. Decisions involving tactics and strategy have been interpreted very broadly. These decisions include, among others, what theories to develop, which witnesses to call, what evidence to challenge or use at trial, what objections to raise, what constitutional issues to raise, what issues to preserve for appeal, and all other decisions relating to investigation and trial of the law suit not specifically reserved to the client.
Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 6.6, at 164-65 (1992). See also ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Std. 4-5.2(b) (3d ed. 1993).
For example, a decision by trial counsel not to request a jury instruction on aggravated assault, which would have conflicted with the defense of self-defense, was a reasonable tactical decision; "a reviewing court may not second-guess decisions of counsel that can be considered matters of trial strategy." State v. Baker, 159 Ohio App.3d 462, 2005 Ohio 45, 824 N.E.2d 162 (Greene). Similarly, the decision not to seek to suppress the pretrial statement of the defendant to the police sometimes falls in this category. State v. Robertson, No. 78 AP-584, 1979 Ohio App. LEXIS 10943 (Franklin July 31, 1979); see State v. Korp, No. 56132, 1989 Ohio App. LEXIS 5069 (Cuyahoga Nov. 2, 1989) (lawyer's trial decision not to present evidence and to accept prosecutor's version of facts binding on client). So too would a decision to waive the client's right to a speedy trial in order to assure an opportunity for adequate preparation for trial. State v. McBreen, 54 Ohio St.2d 315, 376 N.E.2d 593 (1978) (syllabus) ("A defendant's right to be brought to trial within the time limits expressed in R.C. 2945.71 may be waived by his counsel for reasons of trial preparation and the defendant is bound by the waiver even though the waiver is executed without his consent."); accord State v. Taylor, 98 Ohio St.3d 27, 2002 Ohio 7017, 781 N.E.2d 72, at para. 33 (applying McBreen rule).
While many of these cases supporting the freedom of a lawyer to act on his own arise outside of the disciplinary context, their strong language and policy arguments suggest that such practices should be seen as being within the lawyer's implied authority recognized by Ohio Rule 1.2(a).
Even in areas where decision-making authority rests with the lawyer, however, an attorney always has an obligation to exert his best efforts to insure that his client remains fully informed of all relevant considerations regarding the representation. Ohio Rule 1.4(a). See Bd. of Comm'rs on Grievances & Discipline Op. 88-30, 1988 Ohio Griev. Discip. LEXIS 13 (Dec. 16, 1988).
On the topic of authority reserved to the lawyer, see generally 1 Restatement (Third) of the Law Governing Lawyers § 23 (2000).
A lawyer's authority can be actual or apparent. The general rule with respect to actual authority is set forth in 1 Restatement (Third) of the Law Governing Lawyers § 26 (2000), which states that the lawyer's act is that of the client in proceedings before a tribunal or in dealings with a third party if
(1) the client has expressly or impliedly authorized the act;
(2) authority concerning the act is reserved to the lawyer as stated in § 23 [see section 1.2:330]; or
(3) the client ratifies the act.
When one turns to the lawyer's apparent authority, the Restatement rule is as follows:
A lawyer's act is considered to be that of the client in proceedings before a tribunal or in dealings with a third person if the tribunal or third person reasonably assumes that the lawyer is authorized to do the act on the basis of the client's (and not the lawyer's) manifestations of such authorization.
1 Restatement (Third) of the Law Governing Lawyers § 27 (2000). In general, "the lawyer has apparent authority to do acts that reasonably appear to be calculated to advance the client's objectives in the representation, except for matters reserved to the client under § 22." Id. at cmt. c. See section 1.2:320. As stated by Guttenberg and Snyder, "[a] lawyer's general retainer authorizes, explicitly or implicitly, conduct by the attorney that is necessary to effectuate the objectives of the representation." Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 6.4(C), at 150 (1992). While this apparent authority is broad, such authority arising from retention alone does not extend to matters reserved for client decision, such as approval of settlements. Restatement § 27, at cmt. a.
Apparent authority can extend beyond actual authority when the client has limited the lawyer's actual authority but that limitation has not been disclosed to a third party, and instead the client has indicated to the third party that the lawyer is authorized to act. Id. at cmt. b.
Most of the case law in Ohio dealing with the lawyer's authority to act for the client has arisen in the context of whether the lawyer had authority to settle a case and the consequences if he or she did not. This subject is addressed in the remaining paragraphs of this section.
Unauthorized settlements - Disciplinary violations: Ohio Rule 1.2(a) specifies that the lawyer "shall abide" the client's decision on settlement issues. Obviously, the failure to do so is a disciplinary violation, as it was under the former OHCPR (OH DR 6-101(A)(3), 7-101(A)(3), or both, were typically invoked). E.g., Toledo Bar Ass'n v. Slack, 88 Ohio St.3d 274, 725 N.E.2d 631 (2000) (settling case without client's knowledge; for this and numerous other violations, respondent disbarred); Office of Disciplinary Counsel v. Gunnoe, 79 Ohio St.3d 191, 680 N.E.2d 974 (1997) (lawyer sanctioned for settling without client's authorization); Cuyahoga County Bar Ass'n v. Josselson, 43 Ohio St.3d 154, 539 N.E.2d 625 (1989) (lawyer sanctioned for entering into settlement that client had rejected); Bar Ass'n of Greater Cleveland v. Kless, 17 Ohio St.3d 21, 476 N.E.2d 1035 (1976) (respondent suspended for one year for entering into settlements in excess of settlement authority).
In Cuyahoga Bar Ass'n v. Rockman, 94 Ohio St.3d 12, 759 N.E.2d 773 (2001), the respondent took the unauthorized settlement violation to the next level and falsely represented to the insurance company for the defendant in a drunk-driving accident case that he represented Hernandez, the plaintiff (which he did in other matters, but not this one). Respondent then negotiated and settled his "client's" claim against the insurance company without Hernandez's permission. For this and other violations of his ethical obligations to Hernandez, Rockman was permanently disbarred.
Unauthorized settlements - Malpractice liability: Settling a case without authority to do so may subject the lawyer to malpractice liability as well. Caine v. Steele, No. 39656, 1979 Ohio App. Lexis 10477 (Cuyahoga Nov. 1, 1979) (alleging that lawyer settled without client's authority states claim in malpractice upon which relief can be granted); see Gunnoe supra, where the Court referred to the client's having received $ 15,000 in settlement of her malpractice claims against respondent for settling without authorization. See also Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 6.5(B), at 156 (1992) (noting that such unauthorized conduct can subject the lawyer to malpractice litigation and/or disciplinary action).
Enforcing unauthorized settlements - General rule: With one important exception discussed below, Ohio law is that unauthorized settlements are generally not binding on the client. The Restatement rule to that effect is as follows:
Generally a client is not bound by a settlement that the client has not authorized a lawyer to make by express, implied, or apparent authority . . . . When a lawyer purports to enter into a settlement binding on the client but lacks authority to do so, the burden of inconvenience resulting if the client repudiates the settlement is properly left with the opposing party, who should know that settlements are normally subject to approval by the client and who has no manifested contrary indication from the client. The opposing party can protect itself by obtaining clarification of the lawyer's authority. Refusing to uphold a settlement reached without the client's authority means that the case remains open, while upholding such a settlement deprives the client of the right to have the claim resolved on other terms.
1 Restatement (Third) of the Law Governing Lawyers § 27 cmt. d, at 204-05 (2000).
In Ohio, the general rule is that express authority (more often phrased in Ohio as "special" or "specific" authorization) is required, particularly with respect to settlements involving the client's real estate interests. The following cases (all nondisciplinary) reach this result in the real estate context.
The leading case is Morr v. Crouch, 19 Ohio St. 2d 24, 249 N.E.2d 780 (1969), where the Court held that the trial court erred in denying a motion to vacate a judgment entry of settlement involving sale of the client's real estate by the client's lawyer, who admitted he had not been given authority to sell or settle. In doing so, the Court stated that the rule in Ohio is as follows:
An attorney who is without special authorization has no implied or apparent authority, solely by virtue of his general retainer, to compromise and settle his client's claim or cause of action.
Id. at 24, 249 N.E.2d at 781 (syllabus two). (In the body of the opinion, the words "specific authorization" were used; cases following Morr have used both formulations, seemingly interchangeably.) Moreover,
[w]here the power claimed for an attorney is to sell real estate, the agent's authority must be expressly given before a contract for the sale of land will bind the client.
Id. at 25, 249 N.E.2d at 781 (syllabus three).
The other major precedent in the Morr line of cases involving settlement with respect to real estate interests is Ottawa County Comm'rs v. Mitchell, 17 Ohio App.3d 208, 478 N.E. 2d 1024 (Ottawa 1984), in which the court, in addition to following Morr syllabus 2 with respect to settlement authority (and citing numerous additional cases in accord), spelled out further details concerning the rule. Thus,
In representation concerning the client's real estate, "the existence of the attorney's express authority to act on his client's behalf is absolutely crucial to the efficacy of his dealings with other parties."
Express authority may be oral, but the better practice is to reduce the authority to writing; to establish that such authority was verbally conferred, clear and convincing evidence is required.
"Parties dealing with a known agent have a duty to ascertain the scope and limitations of his authority in matters concerning [settlement] agreements to sell or convey his principal's real estate or an interest therein."
Id. at 208; 478 N.E.2d at 1025-26 (syllabi 1-4, 6).
Applying these principles, Ottawa v. Mitchell rejected the effort by county commissioners to enforce a settlement reached in a real estate appropriation case, where the evidence failed to show that the client had given his lawyer the express authority to bind him to a settlement without the client's "final, written approval of the terms thereof." Id. at 214, 478 N.E.2d at 1031.
Other unauthorized settlement cases involving the client's real-estate interests include: City of West Carrollton v. Bruns, No. CA 17054, 1998 Ohio App. LEXIS 6045 (Montgomery Dec. 18, 1998) (law director had no express or implied authority to settle appropriation case without authorization from city council; denial of motion by landowner to compel city to comply with settlement affirmed; quoting Morr rule that absent specific authorization attorney has no implied or apparent authority to settle client's claims); Sleepy Hollows, Inc. v. Ottawa County Bd. of Comm'rs, No. 89- OT-50, 1991 Ohio App. LEXIS 2270 (Ottawa May 17, 1991) (reversing order enforcing settlement and compelling appellants to grant easements; unrebutted evidence that lawyer had no authority to settle; Morr "general rule" of no implied or apparent authority without special authorization quoted, which rule "applies regardless of the nature of the underlying claim or cause of action" but "has special force in matters of real estate," Id. at *3); see Helman v. Thomas, 2001 Ohio 1637; 2001 Ohio App. LEXIS 4755 (Summit Oct. 24, 2001) (quoting Morr rule requiring specific authorization, but affirming enforcement of settlement involving claimed real estate interest of client where client offered no evidence to dispute lawyer's testimony that he had client's express authority to settle on terms agreed upon); Tinlin v. White, No. 653, 1996 Ohio App. LEXIS 1917 (Carroll May 15, 1996) (reversing, for abuse of discretion, trial court's failure to grant appellants' motion for relief from judgment under OH Civ R 60(B)(5) based on unauthorized settlement involving appellant's real estate interests; stringent requirements stated in Morr and Ottawa County for real estate settlements emphasized). Citing Ottawa County, Tinlin found the lawyers' affidavits -- the only evidence supporting authorization, which evidence was disputed -- to be "unacceptable." Compare Helman supra, which allowed such evidence where it was undisputed.
Even where real estate interests are not involved, the majority of Ohio cases refuse to enforce settlement by lawyers entered into without authority from their clients; these cases typically cite the Morr "special authorization" rule as well. See, e.g., Walker v. Sombol, No. 18478, 2001 Ohio App. LEXIS 1518 (Montgomery Mar. 30, 2001) (client's lawyer found not to have had authority to settle case; refusal to enforce settlement affirmed; Morr specific authorization rule quoted with approval); Watral v. Tree Preservation Co., No. 76853, 2000 Ohio App. LEXIS 1857 (Cuyahoga Apr. 27, 2000) (reversal of enforcement of settlement; undisputed facts showed that no settlement authorized or accepted; Morr rule quoted); Seitz v. Plummer, No. 99 AP-350, 1999 Ohio App. LEXIS 6462 (Franklin Dec. 30, 1999) (reversing grant of motion to enforce settlement agreement; hearing needed to resolve disputed issue whether counsel had "special authorization" to settle as required by Morr rule); Cooley v. Cooley, 90 Ohio App.3d 706, 630 N.E.2d 417 (Montgomery 1993) (summary judgment premised on divorce property settlement reversed because lawyer without the "special authorization to settle" required by Morr). Compare Garrison v. Daytonian Hotel, Inc., 105 Ohio App.3d 322, 663 N.E.2d 1316 (Montgomery 1995) (enforcement of settlement affirmed where evidence supported finding that lawyer's specific authorization from client to settle had not been withdrawn; Morr rule cited with approval).
Enforcing unauthorized settlements - Exception to general rule - Argo: The exception to the foregoing general rule comes into play when the client's attempt to avoid the unauthorized settlement is premised upon a motion for relief from judgment under OH Civ R 60(B)(1). The leading case is Argo Plastic Prods. Co. v. City of Cleveland, 15 Ohio St.3d 389, 474 N.E.2d 328 (1984), pursuant to which the Supreme Court held that the settlement, even though unauthorized, could not be set aside under OH Civ R 60(B)(1). In Argo, Kless, an assistant law director for the City of Cleveland, whose lawyers did not have authority to settle a case for the city for an amount in excess of $2,500 without the approval of the city's law director (absent here), settled a case for more than $550,000. When the city discovered the amount of the settlement, upon which judgment had been entered, it sought relief from the judgment under OH Civ R 60(B)(1) on the ground of "surprise." The trial court denied the motion; the court of appeals reversed; but the Supreme Court, reversing the court of appeals, held that the city was bound by the action of its assistant law director. The Court did not make any reference to its earlier decision in Morr v. Crouch; instead, it applied a general OH Civ R 60(B)(1) analysis (not limited to the "surprise" aspect), for purposes of which
the conduct of counsel is imputed to his client. It follows that the city may not now obtain relief from judgment under Civ. R. 60(B)(1) solely on the ground of misconduct by its own attorney. Thus, under our holding in GTE [GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976)], supra, any "mistake, inadvertence, surprise or excusable neglect," as set forth in Civ. R. 60(B)(1), by counsel for a party does not entitle that party to relief from judgment under the rule.
. . . [W]e therefore impute Kless' actions to the city in considering whether the city may obtain relief from judgment under Civ. R. 60(B)(1). That being the case, the city's contention that Civ. R. 60(B) relief is warranted where its attorney exceeds his settlement authority is without merit. The city's remedy, if any, lies elsewhere.
While we have sympathy for the city's situation, we feel it would be manifestly unjust to appellants herein to vacate the judgment entered below pursuant to the settlement on the amount of damages. Using the language employed in GTE, supra, we would be "'visiting the sins of * * * [the city's] lawyer upon the * * * [appellants].'"
15 Ohio St.3d at 392-93, 474 N.E.2d at 331-32 (emphasis, ellipses, and bracketed material (except full GTE cite) by the Court; inner quotation from Link v. Wabash R.R., 370 U.S. 626, 634 n.10 (1962)). Justice Locher filed an angry dissent. It is worthy of note that Argo not only fails to mention the fact that counsel's conduct was characterized in GTE as "not excusable" ("This is not excusable neglect," 47 Ohio St.2d at 153, 351 N.E.2d at 117), but also affirmatively characterizes GTE as an excusable neglect case ("the principle expressed in GTE, supra, with respect to excusable neglect . . .", 15 Ohio St.3d at 392, 474 N.E.2d at 331)!
While the city in Argo was unable to set aside the unauthorized settlement, its lawyer was disciplined for exceeding his authority. See Bar Ass'n of Greater Cleveland v. Kless, 17 Ohio St.3d 21, 476 N.E.2d 1035 (1985) (one-year suspension imposed; the three dissenters would have imposed indefinite suspension). Argo was followed in Weir v. Needham, 26 Ohio App.3d 36, 498 N.E.2d 175 (Medina 1985) (refusing to vacate under OH Civ R 60(B)(1) unauthorized settlement involving transfer of client's interest in real estate); see Maumee Equip., Inc. v. Smith, No. L-85-168, 1985 Ohio App. LEXIS 9378 (Lucas Nov. 22, 1985) (alternative holding; nonreal-estate case).
As an OH Civ R 60(B)(1) matter, the Argo result would appear to be the correct one, since the act of unauthorized settlement is typically not the product of mistake, inadvertence, surprise, or excusable neglect. Indeed, in the disciplinary case against the Argo lawyer, the respondent "admitted to knowingly entering into these settlements [there were two others in addition to that in Argo] without authorization." Bar Ass'n of Greater Cleveland v. Kless, 17 Ohio St.3d at 21, 476 N.E.2d at 1036 (bracketed material added). A subsequent Supreme Court decision distinguishing Argo stated that such conduct by the lawyer in Argo in effecting an unauthorized settlement "constituted active misconduct between a client and his counsel." Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 68, 479 N.E.2d 879, 883 (1985). See also the characterization in the Argo dissent of Kless's conduct as "acts of spite, malice, or incompetence." 15 Ohio St.3d at 394, 474 N.E.2d at 332. (Cf. the reference in another disciplinary decision to the lawyer's having successfully moved the trial court under OH Civ R 60(B)(1) to vacate the judgment entered on an unauthorized settlement, based on the argument that "the trial court had been to blame for erroneously filing the entry." Cuyahoga County Bar Ass'n v. Josselson, 43 Ohio St.3d 154, 155, 539 N.E.2d 625, 626 (1989).) [Query whether the distinction drawn in Moore makes much sense -- it seems a stretch to say that the Argo situation involved "active misconduct between a client and his counsel" when Kless's client, the City of Cleveland, did not authorize any of the settlements and indeed had a standing rule against settlements exceeding a stated amount unless expressly authorized. Perhaps the Court meant to distinguish Argo on the basis of "active misconduct" by the lawyer toward his client. If so, the choice of words used by the Moore Court was unfortunate.]
Argo's dictum that "any" lawyer mistake, etc., will always result in denial of OH Civ R 60(B)(1) relief to the moving party, however, is clearly wrong – see Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 665 N.E.2d 1102 (1996) (defendant entitled to relief from judgment where, in nonsettlement context, its counsel timely prepared answer but it was inadvertently placed in file drawer rather than filed with court; upon learning of entry of default judgment, defendant's attorney filed motion for relief from judgment, with affidavits, the next day; after denial of the motion, the court of appeals affirmed; reversing, the Supreme Court found that counsel's motion and supporting evidence showed excusable neglect warranting relief under Rule 60(B)(1)); accord Moore, 18 Ohio St.3d 64, 479 N.E.2d 879 (neglect of counsel in nonsettlement case imputed to client but found excusable; relief from judgment of dismissal granted under OH Civ R 60(B)(1)); see Bodnar v. Bodnar, 2006 Ohio 3300, 2006 Ohio App. LEXIS 3214 (Richland) (conduct of counsel constituted mistake or inadvertence entitling client to relief under Rule 60(B)(1), as granted by trial court); Stewart v. Heard, 2005 Ohio 5241, Ohio App LEXIS 4745 (Montgomery) (even if conduct of counsel (filing dismissal entry with prejudice, instead of without prejudice, as intended) not excusable, it constituted mistake or inadvertence; granting of Rule 60(B)(1) motion affirmed). See also Office of Disciplinary Counsel v. Clavner, 77 Ohio St.3d 431, 674 N.E.2d 1369 (1997) (noting, in context of disciplinary case, that OH Civ R 60(B)(1) motion to vacate judgment, based on respondent's mistake as to correct trial date, had been granted); Busacca v. MacGuire & Schneider, LLP, 162 Ohio App.3d 689, 2005 Ohio 4215, 834 N.E.2d 856 (stating that in prior stage of the litigation, trial court's grant of summary judgment noted that no response had been filed when in fact plaintiffs had filed response earlier that day; plaintiffs' motion for relief from judgment under Rule 60(B) [subsection unspecified] granted; trial court, at time of its entry, was not aware of filing). Compare Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (applying GTE rule in affirming denial of Rule 60(B)(1) motion; conduct of medical-malpractice defendant and his insurance carrier in failing to answer and not filing motion for relief for 51 days after answer due and a month and a half after default judgment had been entered constituted inexcusable neglect, which exhibited "a disregard for the judicial system and the rights of the plaintiff." Id. at syllabus.); accord Chapman v. Chapman, 2006 Ohio 2328, 2006 Ohio App LEXIS 2169 (Montgomery) (client argued that his counsel's failure to enter into evidence certain psychological reports called for 60(B)(1) relief; court of appeals held that, taking client's allegations as true, "his counsel at the civil protection hearing neglected to perform the basic duties of his representation. Such conduct is not 'excusable'" for 60(B)(1) purposes, id. at para. 18, citing Kay v. Marc Glassman); Swan v. Swan, 2005 Ohio 4636, 2005 Ohio App. LEXIS 4173 (Franklin) (same; failure to perform basic duties of representation constitutes complete disregard for judicial system, which is not excusable). As stated in 2 James M. Klein & Stanton G. Darling II, Baldwin's Ohio Civil Practice § 60:38, at 755 (2d ed. 2004), the Argo dictum "is almost certainly incorrect as to mistake, inadvertence, and excusable neglect."
One final note: The GTE case was not a "surprise" case; it turned on the attorney's neglect, which the Court expressly stated was "not excusable." 47 Ohio St.2d at 153; 351 N.E.2d at 117. The "not excusable" language, however, was not carried into GTE syllabus four, which referred only to imputation to the client of the attorney's "neglect." The Argo court in its syllabus held that the attribution of "neglect" by a party's attorney to the party under 60(B)(1) called for in GTE "applies equally to a claim of surprise under the same provision." 15 Ohio St.3d at 389, 474 N.E.2d at 329.
To summarize, the decided weight of Ohio authority on settlements by lawyers, absent specific authorization from the client, would appear to be that such settlements are unenforceable, particularly if they involve real estate interests. But, if the settlement is one sought to be set aside under Rule 60(B)(1), Argo holds the settlement enforceable.
Thus we have, in essence, two Supreme Court ships "passing in the night" without any recognition in Argo that Morr even existed. In terms of enforceability of unauthorized settlements entered into by lawyers, the two decisions are inherently inconsistent -- if, as Argo holds, such unauthorized conduct by the lawyer must be imputed to the client, the entire line of cases consisting of Morr and its progeny evaporates; under the Argo reasoning, an unauthorized settlement is functionally indistinguishable from one that has "special authorization." We believe that Argo should be cabined to its 60(B)(1) procedural context and that Morr should be recognized as the general rule outside that context. One other footnote on this issue: In Morris v. Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 517 N.E.2d 904 (1988), the Court, in a unanimous decision that came down three years after Argo (which was not cited), quoted with approval the "special authorization" rule as set forth in Morr syllabus two, id. at 49, 517 N.E.2d at 908, in concluding that a lawyer, absent express authority, had no authority to endorse the names of his insured clients on insurer's checks tendered to effect settlement; the insurer's obligation remained in effect.
"Imputed knowledge is information possessed by an attorney that is deemed to be possessed the client, regardless of whether the attorney has actually conveyed this information to the client." Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 6.3(C), at 145 (1992). See Link v. Wabash R.R., 370 U.S. 626, 634 & n.10 (1962); State ex rel. Weiss v. Indus. Comm'n, 65 Ohio St.3d 470, 605 N.E.2d 37 (1992) (notice of Supreme Court entry, served on attorney general, constituted constructive notice to attorney general's clients); State v. Utz, 2001 Ohio 2165; 2001 Ohio App. LEXIS 1010 (Crawford Mar. 8, 2001) (notice of hearing provided to defendant's attorney imputed to defendant); Jewell v. Underwood, No. 2000- CA-61, 2000 Ohio App. LEXIS 6030 (Greene Dec. 22, 2000) (plaintiff cannot claim that defendant misrepresented that she was trained divorce mediator when defendant had informed plaintiff's attorney that she was not; plaintiff bound by his attorney's knowledge); Caldwell v. Brown, 109 Ohio App.3d 609, 672 N.E.2d 1037 (Montgomery 1996) (presentment of claim against estate to executor's attorney, rather than executor, held sufficient); Int'l Lottery, Inc. v. Kerouac, 102 Ohio App.3d 660, 657 N.E.2d 820 (Hamilton 1995) (knowledge of notices of trial date and application for judgment, sent to defendant's attorney, imputed to defendant; denial of OH Civ R 60(B) motions affirmed). See also OH Civ R 5(B) (service on represented party effected by service on party's attorney). But see Chorpenning v. Ohio Div. of Real Estate, No. 88 CA 7, 1989 Ohio App. LEXIS 2202 (Washington May 9, 1989) (notice of appeal filed with agency's attorney held insufficient under statute requiring filing with agency). See generally 1 Restatement (Third) of the Law Governing Lawyers § 28 (2000).
The imputed knowledge rule encompasses all information material to the representation received by the attorney acting within the scope of his or her employment for the client. If, however, the information is obtained by the lawyer outside the scope of the representation, the information is not imputed to the client. See, e.g., Nickschinski v. Sentry Ins. Co., 88 Ohio App.3d 185, 623 N.E.2d 660 (Cuyahoga 1993) (knowledge obtained by attorney, while representing different client in different matter, not attributed to client).
This imputation rule makes sense, given both the agency relationship between client and lawyer and the lawyer's duty of communication to the client. See Ohio Rule 1.4 and sections 1.4:200-:300. It would also seem to be a practical necessity in facilitating the efficient transmission of important information within the justice system. Cf. Payton v. Rehberg, 119 Ohio App.3d 183, 694 N.E.2d 1379 (Cuyahoga 1997), discussed in section 1.2:370.
Other than the decisions expressly reserved to the client under Rule 1.2(a), clients are generally held responsible for acts performed by or on the advice of their lawyers. This section examines possible exceptions to that rule under general law. (The Ohio Rules do not directly address this issue.) Thus, as stated in 1 Restatement (Third) of the Law Governing Lawyers § 29 (2000):
(1) When a client's intent or mental state is in issue, a tribunal may consider otherwise admissible evidence of a lawyer's advice to the client.
(2) In deciding whether to impose a sanction on a person or to relieve a person from a criminal or civil ruling, default, or judgment, a tribunal may consider otherwise admissible evidence to prove or disprove that the lawyer who represented the person did so inadequately or contrary to the client's instructions.
Under § 29(1), a client charged with knowing violation of the law may be able to introduce evidence, going to the client's state of mind, that his or her lawyer gave advice that the conduct was lawful. And in the malicious prosecution area, if a lawyer had advised that there were good grounds to support institution of the underlying litigation and the client relied in good faith on such advice (based on the client's full disclosure of the facts), "such reliance conclusively establishes probable cause." Id. cmt. c, at 213.
Ohio case law is to the same effect; it provides that advice of counsel is a "complete defense" to a malicious prosecution action, provided the necessary condition of full disclosure of the facts by the client is present. See Woodruff v. Paschen, 105 Ohio St. 396, 137 N.E. 867 (1922) (approving trial court's statement of general rule that advice of counsel is complete defense if defendant proves that he or she sought advice of counsel, that counsel was fairly informed of all material facts, and that client followed counsel's advice in good faith, but holding that where petition charges maintenance, as well as institution, of malicious prosecution action, advice of counsel is complete defense only if it covers time from institution to final disposition of the action). Accord, as to the general rule, Burkholder v. Emahiser, No. OT-01-020, 2002 Ohio App. LEXIS 1317 (Ottawa Mar. 22, 2002) (summary judgment for defendants affirmed; "the undisputed evidence supports a conclusion that those [criminal] proceedings were initiated based on probable cause and on the advice of counsel," id. at *4); Uebelacker v. Cincom Sys., Inc., 48 Ohio App.3d 268, 549 N.E.2d 1210 (Hamilton 1988) (acting on advice of counsel after full disclosure of relevant facts constitutes complete defense; summary judgment for party defending against malicious prosecution counterclaim affirmed); see Adkins v. Lewis, No. CA90-08-018, 1991 Ohio App. LEXIS 706 (Clinton Feb. 19, 1991) (probable cause may be established through advice of counsel, but genuine issues of fact existed as to whether defendant informed prosecutor of all material facts or whether he followed prosecutor's advice in good faith; summary judgment for defendant reversed).
While the great majority of cases discussing the advice-of-counsel defense are malicious-criminal-prosecution cases, the defense has been applied in the malicious-civil-prosecution context as well. See Perry v. Adjustable Awning, Inc., 117 Ohio App. 486, 192 N.E.2d 672 (Summit 1962); Harig v. Lepasky, 37 Ohio L. Abs. 332, 49 N.E.2d 694 (App. Summit 1940).
Ohio examples of application of the position set forth in 1 Restatement (Third) of the Law Governing Laywers § 29(2) (2000) can be found in cases under ORC 2323.51, pursuant to which sanctions can be imposed on the client, counsel of record, or both, for frivolous conduct in litigation. In deciding upon whom the sanction should fall, numerous Ohio decisions have concluded that the punishment should be imposed on the person actually responsible for the misconduct. See, e.g., Cseplo v. Steinfels, 116 Ohio App.3d 384, 388, 688 N.E.2d 292, 294 (Franklin 1996) (ORC 2323.51 "provides a mechanism to place the blame directly where the fault lies"; imposition of sanctions on parties, as opposed to their lawyer, was inappropriate). Accord Master v. Chalko, No. 573200, 2000 Ohio App. LEXIS 2014 (Cuyahoga May 11, 2000) (sanctions properly imposed on both party and lawyer). These cases are discussed in section 3.1:300 at "Who may be sanctioned for misconduct."
Another application of the § 29(2) rule is in the unauthorized settlement cases discussed above, except that one of the prime examples of a lawyer acting "contrary to the client's instructions" is Argo, and it went the other way. In the disciplinary context, at least, there are cases sanctioning lawyers for violating the client's settlement instructions. See Josselson and Kless, discussed in section 1.2:340 supra.
When a lawyer enters an appearance before a tribunal, it is presumed that he or she has the authority to do so. A party claiming otherwise has the burden of persuasion. See State ex rel. Juergens v. Ind. Comm'n, 127 Ohio St. 524, 189 N.E. 445 (1934):
[W]e can see no reason why a claimant may not confide the power of filing his application [for rehearing before the Industrial Commission] to an attorney, and authorize him to act in his behalf. . . . The written application signed by him as such attorney was presumptive evidence of his authority to file the application, and such authority is presumed until repelled by evidence. "It is well established in the courts of this country, federal and state, that the appearance of a regularly admitted attorney of law is presumptive evidence of his authority to represent the person for whom he appears. This rule is well established in Ohio."
Id. at 527, 189 N.E. at 446 (bracketed material added; quotation from Ohio Jurisprudence). Accord Payton v. Rehberg, 119 Ohio App.3d 183, 694 N.E.2d 1379 (Cuyahoga 1997) (rejecting plaintiff's argument that counsel's filing of notice of voluntary dismissal was unauthorized; '[i]t is essential to the effective operation of the legal system that the courts be entitled to rely on the signature of counsel as evidence of implied authority," id. at 190, 694 N.E.2d at 1384); 1 Restatement (Third) of the Law Governing Lawyers § 25 (2000). Language in other Ohio case law is generally consistent with the foregoing view. See section 1.2:330 supra. The presumption does not apply in proceedings between lawyer and client. Restatement § 25 at cmt. d.
With regard to a government lawyer's authority (or lack thereof) in the context of settlement, see Argo Plastic Prods. Co. v. City of Cleveland, 15 Ohio St.3d 389, 474 N.E.2d 328 (1984), discussed in section 1.2:340. For a discussion of who is the client of a government lawyer, see section 1.13:530. See also Rule 3.8 of the treatise, "SPECIAL RESPONSIBILITIES OF A PROSECUTOR."
- Primary Ohio References: Ohio Rule 1.2 cmt. 
- Background References: ABA Model Rule 1.2(b)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.23
- Commentary: Wolfram § 10.4
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 § 7.23 (1996).
In numerous instances, the Ohio ethics rules and Ohio practice recognize the moral autonomy of the lawyer. At the outset of any potential lawyer-client relationship, the lawyer exercises moral autonomy in deciding whether to accept the representation. Cf. Ohio Rule 6.2 cmt. . That autonomy is tempered, however, when a tribunal seeks to appoint a lawyer to represent a client. Id. See section 6.2:200. The Rules encourage lawyers to take on controversial and unpopular client cases, and stress that in representing such clients the lawyer is not approving the conduct or endorsing the client's position as her own. Ohio Rule 1.2 cmt. .
The Rules also give room for the exercise of moral autonomy during the lawyer-client relationship. In defining the scope of the representation under Rule 1.2(c), the lawyer may insist upon reasonable limitations on the means to be employed to meet the client's objectives, if the lawyer finds any of those means repugnant or imprudent. Ohio Rule 1.2 cmt. .
Under Ohio Rule 1.16(b)(2), a lawyer may withdraw if the client persists in having the lawyer provide services regarding a course of action the lawyer "reasonably believes" to be illegal or fraudulent. This gives the lawyer the freedom to avoid entanglement with potentially unlawful activity if she so chooses. The lawyer also may withdraw if the client insists upon action the lawyer regards as "repugnant" or with which the lawyer has a "fundamental disagreement." Ohio Rule 1.16(b)(4). See section 1.16:320. In an adjudicatory matter, the court's consent to the withdrawal in such circumstances is usually required. Ohio Rule 1.16(c). See section 1.16:400.
As stated by Guttenberg and Snyder: "The need for professional autonomy is seen as a necessary ingredient for maintaining a highly skilled and well trained profession." Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 6.4(E), at 152-53 (1992).
Prohibited restrictions on lawyer's right to practice upon termination of employment relationship: See section 5.6:200.
Prohibited restrictions on lawyer's future practice as a part of settlement of litigation: See section 5.6:300.
- Primary Ohio References: Ohio Rule 1.2(c)
- Background References: ABA Model Rule 1.2(c)
- Commentary: ABA/BNA § 31:309, ALI/LGL § 19, Wolfram § 5.6.7
Ohio Rule 1.2(c) provides that "[a] lawyer may limit the scope of a new or existing representation if the limitation is reasonable under the circumstances and communicated to the client, preferably in writing." Rule 1.2 cmt.  further expounds on limited representation agreements. The comment, while noting that there is "substantial latitude" in defining the scope of the relationship, emphasizes that "any limitation must be reasonable under the circumstances." The comment then goes on to discuss reasonableness in the context of various examples of limitations on the representation. Thus, if a client simply wants general legal information about an uncomplicated problem, "the lawyer and client may agree that the lawyer's services will be limited to a brief telephone conversation." Id. For such a limitation to be reasonable, however, the time allotted must be "sufficient to yield advice upon which the client could rely." Id. Limitations also may exclude "specific means that might otherwise be used to accomplish the client's objectives," such as limitations regarded as too costly by the client or as repugnant or imprudent by the lawyer. Id. The Task Force, in its Report at 21 (2005), suggests that an appropriate limitation would be a litigator's declining to advise on the taxability of a client's recovery, but that it would be unreasonable for a lawyer handling a contingent-fee case not to represent the client on appeal from an adverse judgment, unless the limitation was expressly stated in the fee agreement.
With respect to limited representation, the Task Force further states in its Report that
Rule 1.2(c) would also permit the Supreme Court to set forth circumstances in which a lawyer may ethically provide "unbundled" legal services -- that is, to assist a client with only one portion of a single case or transaction.
Id. at 21. The Report goes on to note that unbundling has been adopted in some states "to increase the affordability of legal services." Id. It also refers to the form of unbundling contemplated by Ohio Rule 6.5 -- "that is, 'short-term limited legal services' -- without expectation of continuing representation, provided under the auspices of a nonprofit organization or court." Report at 21. See section 6.5:200. Finally, the comment states that a limited-representation agreement, although not exempting the lawyer from providing competent representation under Rule 1.1, "is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Ohio Rule 1.2 cmt. .
There is one Ohio federal case citing to the former OHCPR in which the essence of the limited representation principle was applied. See City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. 193 (N.D. Ohio 1976) (city agreed that law firm's ad hoc representation of it as special bond counsel would not impinge on law firm's long-standing relationship as general counsel for electricity supplier, including in lawsuits adverse to city, and waived any ethical objections as to law firm's duties with respect thereto; city's motion to disqualify law firm in antitrust suit filed by city against, among others, electricity supplier, denied), aff'd, 573 F.2d 1310 (6th Cir. 1977). The CEI decision was relied upon in Morgan v. North Coast Cable Co., No. 57209, 1990 Ohio App. LEXIS 5015 (Cuyahoga Nov. 15, 1990); in reversing a ruling of disqualification of plaintiff's attorney, the court held in the alternative that even if the complaining party had standing to raise the disqualification issue, the lawyer's present client (as well as a former client in related litigation) had twice waived the conflict by affidavit. The Supreme Court affirmed on lack-of-standing grounds, 63 Ohio St.3d 156, 586 N.E.2d 88 (1992) (syllabus), and also agreed with the court of appeals' conclusion with respect to waiver. Id. at 161, 586 N.E.2d at 92.
The general principle is set forth in 1 Restatement (Third) of the Law Governing Lawyers § 19(1) (2000):
a client and lawyer may agree to limit a duty that the lawyer would otherwise owe to the client if:
(a) the client is adequately informed and consents; and
(b) the terms of the limitation are reasonable in the circumstances.
The CEI case is cited by the Restatement as an example of an exception to the otherwise applicable duty of the lawyer to "avoid impermissible conflicting interests" -- the duty of loyalty. See 1 Restatement (Third) of the Law Governing Lawyers § 16(3) reporter's note to cmt. c (2000). The City was (presumably) a sophisticated client and was the one that sought the limited representation, even though it knew of the law firm's general representation of the electricity supplier on the other side of its antitrust suit. As noted at various places during the Restatement comments, these factors cut in favor of waiver.
Another aspect of the limitation-of-representation issue can arise in the insurance context when an insurer seeks to limit, in various ways, the manner in which the lawyer represents the insured (usually for cost-control purposes). See generally 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 5.11 (3d ed. Supp. 2003), which notes that various state bar association ethics committees have opined that insistence by the insurer on programs to limit expenses is a violation of the rules. Although Hazard and Hodes do not cite to Ohio, the Board of Commissioners issued such an opinion under the former OHCPR. See Bd. of Commr's of Grievances & Discipline Op. No. 2000-3, 2000 Ohio Griev. Discip. LEXIS 3 (June 1, 2000), discussed in section 1.7:410 at "Insured-insurer conflicts - Impermissible insurer-imposed controls on lawyer conduct."
See discussion at sections 1.2:240, 1.2:510, and 1.5:500.
- Primary Ohio References: Ohio Rule 1.2(d)
- Background References: ABA Model Rule 1.2(d)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.51
- Commentary: ABA/BNA § 31:311, ALI-LGL §§ 23(1), 94(2), Wolfram § 13.3
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 § 7.51 (1996).
Ohio Rule 1.2(d), like its former Code analog (OH DR 7-102(A)(7)), prohibits a lawyer from counseling or assisting the client in conduct the lawyer "knows is illegal or fraudulent." "Illegal" is defined in Ohio Rule 1.0(e) as "denot[ing] criminal conduct or a violation of an applicable statute or administrative regulation." In contrast, the Model Rule language precludes assistance in known "criminal or fraudulent" conduct. Ohio's use of illegal rather than criminal is also present in a number of other of the new Rules, i.e., 1.6(b)(3), 1.16(b)(2), 4.1(b), 8.4(b). Unfortunately, the word "illegal," despite being a defined term, covers a multitude of sins; its outer boundaries are both obscure and overbroad, in comparison with the Model Rules terminology. (Does it cover parking violations? See ORC Ch 4521, entitled "Local, Noncriminal Parking Infractions." Is it underinclusive as well? Under the Rule, is a lawyer free knowingly to counsel or assist his client in violating the constitution?) In contrast, as the Task Force itself has stated in support of Rule 1.6(b)(1), the future-crime exception to confidentiality "provides a 'bright-line' rule for lawyers by limiting disclosure to future acts that public policy has determined should be codified as crimes." Task Force Report at 8 (2005). Accord 1 Restatement (Third) of the Law Governing Lawyers § 82, cmt. d, at 616-17 (2000) (while other misconduct can pose threat of serious harm, "the prevailing view limits the exception [to the attorney-client privilege] to crimes and frauds. The actual instances in which a broader exception might apply are probably few and isolated, and it would be difficult to formulate a broader exception that is not objectionably vague." (bracketed material added)). To similar effect, see id. at § 67 cmt. d.
Moreover, according to the Task Force (Report at 13),
Rule 1.2(d) requires a lawyer who advises a client about proposed conduct to determine whether some or all of it might constitute illegal or fraudulent activity.
(Emphasis added.) This obligation, if it indeed exists (there is nothing of which we are aware in the Rule or the comments to this effect), could greatly add to a lawyer's burden (and the client's cost) in representation; arguably, it imposes an affirmative obligation on the lawyer in every instance to undertake a review of all "applicable" statutes and regulations in order to determine potential illegality. ("Applicable" statutes and regulations include, of course, not just those of Ohio, but federal and any other state laws and regulations that may be implicated by the proposed conduct. See the Task Force's unfair labor practice example, Report at 12-13.) This is not to say that a lawyer can ignore the obvious if red flags are flying (see ABA, Annotated Model Rules of Professional Conduct 40 (5th ed. 2003) (commentary), but the Task Force's more demanding language is a far cry from the prohibition against counseling or assisting a client in conduct "known" to be illegal or fraudulent, as stated in Rule 1.2(d).
Also important, in terms of both uniformity and fostering a common understanding among lawyers in jurisdictions following some form of the Model Rules as to what conduct is acceptable and what is not, is that we have found no jurisdiction, other than Ohio, that uses "illegal" instead of "criminal" in Rule 1.2(d). In this regard, the unique Ohio language would appear to be at odds with three principal purposes of moving to the Model Rules in the first place:
By adopting the Model Rules, Ohio will become more relevant in national discussions on the subject of legal ethics. Moreover, Ohio practitioners will have the benefit of case law and advisory opinions from other jurisdictions that have interpreted and applied the Model Rules.
Adoption of the Model Rules will facilitate the ability of lawyers who practice in Ohio and other jurisdictions to understand and comply with ethical standards of the various jurisdictions in which they practice.
Adoption of the Model Rules will facilitate legal ethics instruction in Ohio law schools. Currently, Ohio law schools must teach both the Model Rules, which are tested on the Multistate Professional Responsibility Examination, and the Ohio Code, which is addressed in the essay portion of the Ohio Bar Examination.
Task Force Report p. 2. With all respect, these "benefits" are lost when the otherwise universally operative language is changed. And, even though it might be said that Ohio Rule 1.2(d) merely continues the use of "illegal" in former OH DR 7-102(A)(7), the fact of the matter is that virtually all of the cases decided under that provision involved criminal conduct. See Baldwin's Ohio Rev. Code Ann. 906-08 (2000) & Supp. 2006, at 696-98. Whether that will remain true under the new definition of "illegal" in Rule 1.0(e) (expressly including violation of any statute or regulation) seems unlikely; if the definition is taken at face value, Ohio will be isolated from all other Model Rule jurisdictions on this point.
Further confusion is engendered by the fact that in some places, the Ohio Rules retain the Model Rules "criminal or fraudulent" language, as in Rule 3.3(b), which is analogous to the obligation in former OH DR 7-102(B)(1) to disclose fraud (7-102(B)(1) did not address disclosure of either criminal or illegal conduct). And yet in Rule 4.1(b), also derived from 7-102(B)(1), the operative words are "illegal or fraudulent." Ethics rules should be designed to guide lawyers, not confound them. The illegal/criminal variation fails that test. Another ramification of the use of "illegal" in Rule 1.2(d) is discussed below in section 1.2:630.
In sum, while the lawyer is duty bound to represent the client in the client's pursuit of legal ends through legal means, Rule 1.2(d) precludes the lawyer from acceding to client demands for help in carrying out known illegal or fraudulent conduct. If a client insists that the lawyer do so, the lawyer must withdraw. Ohio Rule 1.16(a)(1). See section 1.16:230. If the lawyer remains in the representation and counsels or assists the client in such conduct, there is a violation of Ohio Rule 1.2(d).
Division (d) does not, however, prohibit the lawyer from advising the client about the criminal or civil consequences of a proposed course of action. That is exactly the sort of advice lawyers are encouraged to give; Rule 1.2(d) and cmt.  expressly recognize that this is not counseling or assisting in improper conduct.
Rule 1.2(d) does not directly address issues relating to disclosure of privileged information, but it must be remembered that a closely related provision, Rule 4.1(b), does just that. Under 4.1(b), a lawyer shall not, in the course of representing a client,
knowingly . . . fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client.
Thus, in discharging the Rule 1.2(d) duty not to assist a client in conduct the lawyer knows is illegal or fraudulent, the lawyer must be mindful that he or she also has an affirmative obligation under Rule 4.1(b) to disclose material facts, including privileged information (see Rule 4.1 cmt. ), if the failure to do so is knowing and if disclosure is necessary to avoid such assistance. Although not expressly stated in the Rule, it would appear that the Rule 4.1 disclosure obligation is directed at client illegality or fraud toward other persons, not a tribunal. (See Ohio Code Comparison to Rule 4.1: "Division (b) parallels ... the 'fraud on a person' portion of DR 7-102(B)(1). The 'fraud on a tribunal' portion of DR 7-102(B)(1) is now found in Rule 3.3." See also the title of Rule 4.1 of the treatise, "TRUTHFULNESS IN STATEMENTS TO OTHERS," and the overall caption for Rules 4.1-4.4, "TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS.") Further discussion of the Rule 4.1(b) duty is contained in section 4.1:300.
Ohio Rule 1.2(d), like its former OHCPR analog (OH DR 7-102(A)(7)), can involve, but is not limited to, illegal or fraudulent client conduct that impacts on a tribunal. Conduct directed at a tribunal implicates the provisions of Rule 3.3(b), which is concerned with known past, present, or future "criminal [not "illegal"] or fraudulent conduct" by any person "including the client." In the 3.3(b) context, a lawyer must take reasonable measures to rectify, including, if necessary, disclosure to the tribunal. See section 3.3:700. The focus of the following two sections is on client misconduct directed at persons and entities other than a tribunal.
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 § 7.51 (1996).
As indicated above, many of the former OH DR 7-102(A)(7) cases involved counseling or assisting illegal client conduct directed at a tribunal, but there were exceptions. One of the most egregious, where the lawyer purported to be counseling his client in illegal conduct directed at a tribunal, but in fact was defrauding the client, was Office of Disciplinary Counsel v. Atkin, 84 Ohio St.3d 383, 704 N.E.2d 244 (1999), where the respondent had falsely suggested to his client that he could bribe a U.S. District Court judge and, as a result, had obtained from the client $ 550,000 that he used for his personal benefit and failed to report for income tax purposes. Following the lawyer's felony conviction on numerous counts involving moral turpitude, including obstruction of justice (see United States v. Atkin, 107 F.3d 1213 (6th Cir. 1997) (affirming conviction)), the lawyer was permanently disbarred by the Ohio Supreme Court in the subsequent disciplinary proceeding for, inter alia, violation of OH DR 7-102(A)(7). While noting that a sanction of indefinite suspension has been imposed even where there is no damage to the judge resulting from such conduct, the Court made clear that this case was different. Although the judge in question was found not to be in any way involved in the scheme, he was nevertheless subjected to an investigation and a complete audit by the U.S. Attorney's office. In such cases, "the offending attorney's lack of intent to carry out the bribe [is] not a mitigating factor." 84 Ohio St.3d at 385, 704 N.E.2d at 246. Accord Ohio State Bar Ass'n v. Consoldane, 50 Ohio St.2d 337, 364 N.E.2d 279 (1977) (respondent testified that his request for funds from his incarcerated client for payment to unnamed others in order to obtain shock probation was a "ruse, with the hope of obtaining his fee for past services," id. at 338, 364 N.E.2d at 280; indefinite suspension imposed).
While the cases just discussed involved counseling illegal conduct for the lawyer's personal gain, such a motive is not required. Office of Disciplinary Counsel v. Miller, 79 Ohio St.3d 115, 679 N.E.2d 1098 (1997) (aiding and abetting filing of client's false federal corporate tax return; lawyer, who did not benefit from the illegal conduct but who was convicted on various federal charges, was suspended for one year for violation of OH DR 7-102(A)(7), with credit for time served pursuant to indefinite suspension imposed after conviction). See also Disciplinary Counsel v. Cirincione, 102 Ohio St.3d 117, 2004 Ohio 1810, 807 N.E.2d 320, where respondent assisted his client in obtaining lodging in violation of a court order of judicial release by misrepresenting the facts to the landlord.
Former OH DR 7-102(A)(7) violations often transgressed other disciplinary rules as well. An attempted bribery by a lawyer of his client's arresting officers, for example, violated not only 7-102(A)(7), but also former DR 1-102(A)(3) ("A lawyer shall not: . . . [e]ngage in illegal conduct involving moral turpitude") and 1-102(A)(5) ("A lawyer shall not: . . . [e]ngage in conduct that is prejudicial to the administration of justice"). Bar Ass'n of Greater Cleveland v. Italiano, 24 Ohio St.3d 204, 494 N.E.2d 1113 (1986).
In addition to disciplinary consequences, counseling illegal conduct obviously may give rise to criminal liability as well. For example, a lawyer's conduct in violation of former OH DR 7-102(A)(7) can serve to obstruct justice. See the Atkin case, discussed in the second paragraph of this section. In another case, respondent's offer of his client's money to the arresting officers in return for a reduction of the traffic charge against his client violated this provision, Bar Ass'n of Greater Cleveland v. Italiano, 24 Ohio St.3d 204, 494 N.E.2d 1113 (1986), and resulted in respondent's conviction on two counts of attempted bribery. See State v. Italiano, 18 Ohio St.3d 38, 479 N.E.2d 857 (1985) (affirming conviction).
And see the discussion of the obligations of a lawyer for a publicly-traded company in preventing illegal acts or substantial financial injury to the company or its investors under regulations promulgated by the SEC pursuant to section 307 of the Sarbanes-Oxley Act (15 USC § 7245 (2003)) at sections 1.6:350 and 1.13:310.
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 § 7.51 (1996).
In addition to fraud on a tribunal (see section 3.3:700), misconduct under Ohio Rule 1.2(d) can facilitate a scheme to defraud others. Thus, in Office of Disciplinary Counsel v. Shaffer, 98 Ohio St.3d 342, 2003 Ohio 1008, 785 N.E.2d 429, the lawyer's conduct -- counselling his client to forge the signature of the client's grandmother on a power of attorney, as part of a scheme to defraud with respect to the sale of real estate owned by the incapacitated grandmother -- violated former OH DR 1-102(A)(4) ("A lawyer shall not: . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation"), as well as 7-102(A)(7). The Shaffer case is further discussed at section 8.4:400. Additional instances under former OH DR 7-102(A)(7) include: participation in a scheme to reobtain property forfeited by his client because of criminal conviction; at a sheriff's sale the lawyer signed an affidavit falsely stating that he was not bidding on the property for the benefit of his client, Office of Disciplinary Counsel v. Camera, 68 Ohio St.3d 478, 628 N.E.2d 1353 (1994) (conduct also violated former OH DR 1-102(A)(3)-(5) and 7-102(A)(3), (5)); assisting a client's attempt to defeat a state agency's valid reimbursement claim for time spent in a state mental institution, Cincinnati Bar Ass'n v. Hartke, 67 Ohio St.3d 65, 616 N.E.2d 186 (1993) (conduct also violated OH DR 1-102(A)(4) and 5-104(A)); and participating in a plan, on behalf of a client, to secure a finder's fee for informing an owner of a stolen truck where it might be found, when the lawyer knew a portion of the fee was to be split with the thieves, Bar Ass'n of Greater Cleveland v. Sandler, 51 Ohio St.2d 132, 364 N.E.2d 1168 (1977) (conduct also violated OH DR 1-102(A)(4)-(6) and 7-102(A)(8)). But cf. Cincinnati Bar Ass'n v. Wallace, 83 Ohio St.3d 496, 700 N.E.2d 1238 (1998) (since relator did not establish by requisite degree of proof that otherwise lawful real estate transfer, in which respondent Wallace admittedly participated, was fraudulent conveyance within meaning of ORC 1336.04-.05, conveyance did not form basis for violation of former OH DR 7-102(A)(7)).
Special problems arise with respect to client past conduct that has continuing fraudulent or illegal consequences. See Rule 1.2 cmt. . Under these circumstances, allowing a client to continue its course without rectifying the past act may constitute assisting the client in such improper conduct. For example, where a client fraudulently secures from the IRS subchapter S treatment providing continuing tax benefits, the lawyer cannot assist in future tax filings based on the subchapter S status, even if the lawyer had nothing to do with the original conduct. Ohio State Bar Ass'n Informal Op. 87-10 (Sept. 17, 1987).
Ohio Rule 1.2(d) authorizes the lawyer to discuss with the client "the legal consequences of any proposed course of conduct." Thus, while assisting client wrongdoing is prohibited, this prohibition "does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct." Ohio Rule 1.2 cmt. . And, of course, those consequences are often less than clear. As Hazard and Hodes note:
Legal consequences and the content of the law itself often are highly indeterminate and are subject to manipulation by human actors, including the very lawyer who is counseling the client about the law.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 5.14, at 5-47 (3d ed. Supp. 2005-2). See also 2 Restatement (Third) of the Law Governing Lawyers § 94 cmt. c (2000); Stephen Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 Yale L.J. 1545 (1995).
Closely related is the "test case" situation, where the client believes in good faith that the law in question is invalid or inapplicable on the facts. Encouraging lawyer participation in such cases furthers the development of the law.
Serious test cases thus also generally result in upholding the law. If the client's position prevails, the law will have been clarified, and will be correctly applied in future cases like those presented by the client. If the client's test case fails, not only will the law (as understood before the challenge) be applied, but this now reinforced view of law will also more clearly be applicable to others in the future.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 5.15, at 5-48 to 5-49 (3d ed. Supp. 2005-2). The final clause of Ohio Rule 1.2(d) is in accord; it states that the lawyer "may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law." Comment  "recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or the interpretation placed on it by governmental authorities." Ohio Rule 1.2 cmt. .
A third category involves the client who knows the conduct is unlawful but wishes to take action as a matter of conscience or protest -- "civil disobedience." While "[c]ivil disobedience occupies an honorable place in the history of American political and moral life, . . . [i]n the eyes of the law, civil disobedience constitutes law breaking, and lawyers must advise clients accordingly if asked about a planned activity in advance." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 5.15, at 5-49 (3d ed. Supp. 2003). See Ohio Rule 1.2 cmt. , quoted above.
The second of these categories -- the test case -- raises an additional issue arising from Ohio's change from the Model Rule prohibition against assisting "criminal" conduct to assisting "illegal" conduct. Admittedly, there is a certain tension in MR 1.2(d)'s prohibition against assisting a client's known criminal conduct and the same paragraph's approval of assisting a client in "making a good faith effort to determine the validity, scope, meaning, or application of the law," which may involve "disobedience of the statute or regulation or the interpretation placed on it by governmental authorities." MR (and Ohio) Rule 1.2 cmt. . Under the Ohio "illegal"-rather-than-"criminal" formulation, however, there is a significantly larger body of law to which this rather delicate distinction (between the prohibition against assisting unlawful conduct and the permitted assistance in testing and/or disobeying a law) applies. Under the Model Rule language, a lawyer need not think twice about assisting a client's good faith effort to test the validity or applicability of a noncriminal statute or regulation; she must do so under the Ohio Rule.
- Primary Ohio References: Ohio Rule 1.2 cmt. ; Ohio Rule 1.4(a)(5)
- Background References: ABA Model Rule 1.2(e) [deleted by 2002 amendments; see discussion below]
Under the 2002 amendments to the Model Rules, MR 1.2(e) was eliminated and its substance moved to MR 1.4(a)(5). These changes are reflected in the new Ohio Rules. See Ohio Rule 1.4(a)(5) and Ohio Rule 1.2 cmt. . See also ABA, Annotated Model Rules of Professional Conduct 40, 57 (5th ed. 2003) (commentary).
While limited representation requires that the lawyer consult with the client and obtain her informed consent to the limitation, see section 1.2:510, the "warning of limitations" discussed in this section is of a different nature: it deals with the lawyer's obligation when the client seeks assistance that would be unlawful or ethically improper for the lawyer to provide. When the circumstances warrant, the lawyer must warn the client that he cannot provide the assistance sought. This obligation to "consult" is triggered, in the language of the Rules, when
the lawyer knows that the client expects assistance not permitted by the Ohio Rules of Professional Conduct or other law.
Ohio Rule 1.4(a)(5).
This consultation duty would include, of course, circumstances in which the prohibition against assisting client illegality or fraud comes into play, Ohio Rule 1.2(d) (see sections 1.2:610-:620), but would not be so limited. See ABA, Annotated Model Rules of Professional Conduct 57-58 (5th ed. 2003) (commentary to MR 1.4(a)(5)); 1 Geoffrey C. Hazard, Jr. & William Hodes, The Law of Lawyering § 7.5 (3d ed. Supp. 2003). For example, the warning would also be called for if the client wanted the lawyer to do that which the disciplinary rules prohibit him from doing, such as asserting frivolous claims. See Ohio Rule 3.1, discussed in section 3.1:200. The full disclosure required before a client can give informed consent to a conflict can be viewed as a warning to the client of potential limitations on the representation. See Rule 1.7 of the treatise.
- Primary Ohio References: Ohio Rule 1.2
- Background References: ABA Model Rule 1.2
- Commentary: ABA/BNA § 31:101; ALI-LGL §§ 50-51
Ohio Rule 1.2 cmt.  states that when representing a fiduciary, "the lawyer may be charged with special obligations in dealings with a beneficiary."
As noted in section 1.13:520, which deals with organizational clients, the law in Ohio with respect to whom a lawyer representing a fiduciary owes duties is problematical at best. The discussion in section 1.13:520 centers on the limited partnership case of Arpadi v. First MSP Corp., 68 Ohio St.3d 453, 628 N.E.2d 1335 (1994), and its legislative aftermath. Another Ohio Supreme Court case, Elam v. Hyatt Legal Servs., 44 Ohio St.3d 175, 541 N.E.2d 616 (1989), involving a nonorganizational client with fiduciary duties, is also relevant here. In Elam, the Supreme Court held that a lawyer for the executor of an estate could be sued for malpractice by the estate's vested beneficiaries, to whom the executor owed a fiduciary duty. The Ohio General Assembly responded to this decision by enacting ORC 1339.18, pursuant to which an attorney for a fiduciary (expressly including an executor) owes no duty to those to whom the fiduciary owes fiduciary obligations. Amazingly, the legislation has been ignored, and Elam continues to be cited as authority on this point. E.g., Brinkman v. Doughty, 140 Ohio App.3d 494, 748 N.E.2d 116 (Clark 2001) (duty of care arising out of attorney-client relationship existing between administrator of estate and attorneys for the estate extended to beneficiaries for purposes of legal malpractice action brought by beneficiaries). Elam (and Arpadi) and the subsequent legislative developments are discussed in detail in section 1.1:410, at "Liability to Nonclient Found or Supported Based on Privity"; see also section 1.2:210 supra.
In addition to the named class representative(s), the class action lawyer may have duties to the other class members as well. Thus, as noted by the Restatement, confidential communications by class members made directly to the lawyer for the class may be privileged. 1 Restatement (Third) of the Law Governing Lawyers § 14 cmt. f (2000). Since class members may have no practical alternative to remaining in the class if they wish to enforce their rights, class-action lawyers "have duties to the class as well as to the class representatives. A class-action lawyer may therefore be privileged or obliged to oppose the views of the class representatives after having consulted with them. . . . The lawyer should act for the benefit of the class as its members would reasonably define that benefit." Id. at 131-32. See also former OH DR 2-104(A)(5) (a lawyer in a class action may accept, but cannot seek, representation of those needed for joinder in the action). This OHCPR provision was not carried over into the Ohio Rules.
- Primary Ohio References: Ohio Rule 1.2(e)
- Background References: none
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.81-7.84
- Commentary: ABA/BNA § 71:601; Wolfram § 13.5.5
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 §§ 7.81-7.84 (1996).
In general: Ohio Rule 1.2(e) precludes a lawyer from presenting, participating in presenting, or threatening to present criminal charges or professional misconduct allegations solely for the purpose of obtaining an advantage in a civil matter, unless such conduct is "otherwise required by law." (The prohibition in Rule 1.2(e) is carried forward from the Code (OH DR 7-105(A)); there is no paragraph (e) in MR 1.2.) This type of conduct is an abuse of the judicial process and lessens public confidence in the legal system. See Cuyahoga County Bar Ass'n v. Wise, 108 Ohio St.3d 164, 2006 Ohio 550, 842 N.E.2d 35; Thompson v. R&R Serv. Sys., Inc., Nos. 96 APE10-1277, 96 APE10-1278, 1997 Ohio App. LEXIS 2677, at *20 (Franklin June 19, 1997).
Basic prohibition: Rule 1.2(e) requires that both an act and a motive be present to subject a lawyer's conduct to sanction under this provision. The act required to trigger sanction is to "present, participate in presenting, or threaten to present criminal charges or professional misconduct allegations." To violate the Rule, however, the act must also be undertaken "solely to obtain an advantage in a civil matter." Thus, threatening to bring or actually bringing criminal or disciplinary charges against another is not improper in itself. The prohibition applies only when this is done "solely to obtain an advantage in a civil matter." A city law director, for example, may simultaneously pursue both a criminal action and a civil action against a defendant arising out of the same conduct. Ohio State Bar Ass'n Informal Op. 77-5 (Apr. 25, 1977). Only if the threat of criminal prosecution were used solely to gain an advantage in the civil action would a violation occur. Id.
A classic instance of threatening to present criminal charges is found in Wise, 108 Ohio St.3d 164, 2006 Ohio 550, 842 N.E.2d 35. The respondent represented a mother in a custody dispute. The child's aunt was seeking custody but her complaint was dismissed on procedural grounds. Respondent mistakenly thought that this operated immediately to return custody to his client, and he so advised the client. (The court had the child placed in protective custody while the issue of the child's welfare, if the child were placed in the custody of her parents, was investigated.) When respondent's client was unable to locate the child at day-care centers, she became distraught and brought up pursuing kidnapping charges against the aunt. Respondent called the Cleveland Police Department, the aunt's employer, to see if she was at work. (She was not.) Respondent told the police sergeant with whom he talked that if the aunt didn't turn over the child, "kidnapping charges might be filed." Id. at para. 6. Respondent also dropped the name of the county prosecutor, indicating that he "would personally go see him in order to get kidnapping charges filed." Id. He made similar references in conversations with the aunt's lawyer.
In the disciplinary proceeding, respondent argued that "he did not threaten criminal charges against the aunt to gain an advantage in the custody matter." Id. at ¶ 23. Instead, he claimed he was trying to "prevent the aunt from being prosecuted for kidnapping." Respondent's "explanation" was found by the panel, board, and Court to be, not surprisingly, "implausible." Id. As stated by the Supreme Court,
[W]e agree with the board that respondent's mentioning that the county prosecutor was his friend in connection with threatening to bring kidnapping charges was intended to intimidate . . . . We therefore find that he violated DR 7-105 . . . .
Id. at para. 25. Although the Court does at one point say, in discussing aggravating factors for sanctions purposes, that respondent had an "improper motive" for calling the aunt's employer, id. at para. 16, the motive requisite contained in 7-105 (and in Rule 1.2(e)) is not otherwise addressed in Wise. (This aspect of the Rule is discussed this section infra.)
While there is little Ohio case law other than Wise interpreting the act requirement, authority from other states suggests that courts do not distinguish between well-founded and ill-founded criminal charges, or between serious crimes and minor infractions. Charles W. Wolfram, Modern Legal Ethics § 13.5.5 (1986). Pursuant to this approach, any threat of criminal prosecution, assuming the lawyer does so "solely" to gain an advantage in a civil case, violates this provision. As the Rule makes clear, the mere threat of criminal prosecution is enough to constitute a violation; criminal charges need never be filed. Id. An Ohio Supreme Court case in accord is Office of Disciplinary Counsel v. Watson, 95 Ohio St.3d 364, 2002 Ohio 2222, 768 N.E.2d 617 (threatening to file criminal charges if fee not paid violated former OH DR 7-105(A), which, except for lack of reference to "professional misconduct allegations" and the absence of the introductory phrase "Unless otherwise required by law," both of which were added by the new Rule, was identical to 1.2(e)). Some courts have held that even if all the lawyer does is delay a criminal matter in order to gain an advantage in a civil suit the provision is violated. Wolfram § 13.5.5. See In re Vasser, 382 A.2d 1114 (N.J. 1978) (attempt to delay criminal assault prosecution to secure leverage in divorce action). Considering that a gratuitous delay in a criminal matter would tend to diminish public confidence in our legal system, a fundamental concern underlying Rule 1.2(e), this interpretation appears justified.
The requirement that the act be done "solely to obtain an advantage in a civil matter" contains two restrictions. The Rule's concern is limited to situations in which the threat to present criminal or disciplinary charges is made "solely" to obtain an advantage in a civil matter. If the lawyer has both a permissible and an impermissible motive for the action, Rule 1.2(e) would appear not to apply. Nevertheless, it should be emphasized that the courts seldom mention this single-motive limitation and reliance on a multiple motive defense is risky at best. See, e.g., People ex rel. Gallagher v. Hertz, 608 P.2d 335 (Colo. 1979) (implicitly rejecting the multiple motive defense). Second, the threat must be directed to gain some advantage in a civil action. Without this motivation, such a threat is permissible.
Statutory requirements creating a duty for a party in a civil matter to warn another party of possible criminal liability illustrate the interplay of the requirements for an act and a motive. At times, the legislature enacts a statute providing that before a party can pursue a civil action, the party must send to the prospective defendant a notice that includes a statement to the effect that if the matter is resolved within a certain time period, the prospective defendant cannot be criminally prosecuted, but that if it is not settled, criminal process may be initiated. Compliance with such a statute would not be a violation of Ohio Rule 1.2(e), because the motivation for the notice is to comply with the statute rather than solely to obtain an advantage in the civil action. Ohio State Bar Ass'n Informal Op. 87-9 (July 16, 1987) (applying former OH DR 7-105(A) in light of former ORC 2307.61, pertaining to civil actions involving willful damage to property or theft). Further, to provide such notice does not threaten to prosecute or to institute charges, the act required to find a violation; it simply gives the debtor information as to how to avoid criminal prosecution. Toledo Bar Ass'n Op. 91-5 (Feb. 19, 1991). Such a scenario would also fall within the "[u]nless otherwise required by law" limitation in Rule 1.2(e).
Under the former OHCPR, the Cleveland Bar Association found that, even without a statutory requirement, a lawyer's inclusion, in a collection letter to a debtor of his clients, of information about possible criminal ramifications of failing to pay on a contractual debt did not violate this provision. Cleveland Bar Ass'n Op. 91 (Aug. 2, 1973). The Ohio Supreme Court, however, took a different view in Cincinnati Bar Ass'n v. Cohen, 86 Ohio St.3d 100, 712 N.E.2d 118 (1999). In Cohen, the lawyer sent letters threatening criminal prosecution to a former client in an effort to obtain payment of his own unpaid legal fees incurred in representation of the client in a civil action. In adopting the findings, conclusion, and recommendation (public reprimand) of the Board, the Supreme Court reasoned that "[b]ecause respondent's letters to his client state that the threat of criminal charges would be withdrawn if his fees were paid, we find, as did the board, that those threats were solely for the purpose of obtaining an advantage in a civil action and so violated the Disciplinary Rule [OH DR 7-105]." Id. at 101, 712 N.E.2d at 119.
Common misconduct: Ohio Rule 1.2(e) would clearly be violated if a lawyer openly threatened criminal or disciplinary consequences for the sole purpose of forcing the opposition to comply with a request in a civil action. Under the language of former OH DR 7-105(A), for example, a lawyer, who wrote opposing counsel that unless the opposing party dropped all claims in a property dispute and either paid rent that the lawyer claimed was due or vacated the property in question the lawyer would "'bring to the attention of the Prosecutors' Office the enclosed documents for the purpose of seeing [sic] criminal prosecution,'" was disciplined for violating 7-105(A). Office of Disciplinary Counsel v. King, 67 Ohio St.3d 236, 237, 617 N.E.2d 676, 677 (1993).
Under prior law (and presumably under Rule 1.2(e) as well), the threat need not have been tied directly to a specific advantage sought in the civil action for a violation to be found. A city law director, who also had a private practice, was sanctioned for violating OH DR 7-105(A) when he threatened a deponent in a civil action by stating: "Don't get smart with me or you won't get out of this town," and then initiated a criminal proceeding against the deponent that clearly was not supported by probable cause (thereby also violating OH DR 7-103(A)). Stark County Bar Ass'n v. Russell, 25 Ohio St.3d 124, 125, 495 N.E.2d 430, 431 (1986).
Release of civil liability: Special problems may arise in this area when parties attempt to secure a release from civil liability in exchange for an agreement not to pursue criminal charges. Such a promise could occur either between private parties or between a private party and the government. The analysis varies somewhat depending on the context.
In the situation involving private parties, the Ohio Supreme Court under the former OHCPR focused more on whether such an agreement was enforceable rather than whether participating in the making of such an agreement was unethical. For example, in Brown v. Best Products Co., 18 Ohio St.3d 32, 479 N.E.2d 852 (1985), the Court ruled that any release executed by private parties whereby one party agreed to release another party from civil liability in exchange for a promise by the other not to pursue a criminal action was void as against public policy. The Court explained that any such agreement is, by its very nature, the product of duress. Further, it is void for lack of consideration, because the public prosecutor, not the private party, makes the ultimate determination as to whether a criminal action will be prosecuted.
In the government setting, a somewhat different set of factors comes into play. The BCGD addressed one aspect of this problem in Bd. of Comm'rs on Grievances & Discipline Op. 94-10, 1994 Ohio Griev. Discip. LEXIS 5 (Aug. 12, 1994). The Board advised that when a prosecutor determines that a properly instituted criminal action lacks merit, it violated former OH DR 7-105(A) (and 1-102(A)(5)) for the prosecutor to offer to dismiss the criminal charge in exchange for the defendant's promise to sign a release of all civil claims against the city and police officers involved. When a prosecutor determines that a case lacks merit, the prosecutor has an independent ethical duty to dismiss the action, which duty should not be conditioned on the defendant's agreement to relinquish his civil and constitutional rights. Such a misuse of the criminal process constituted a threat to continue a criminal action for the purpose of securing an advantage in a civil matter, a violation of OH DR 7-105(A), and would likewise violate Ohio Rule 1.2(e). If the criminal charge to be dropped has merit, the permissibility of a release-dismissal agreement is unclear. From a Rule 1.2(e) perspective, it would seem that the issue should turn on whether the threat to continue criminal prosecution in the absence of a release of civil liability is motivated "solely to obtain an advantage in a civil matter."