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

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Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.4 RULE 1.4 COMMUNICATION

1.4:100 Comparative Analysis of Ohio Rule

1.4:101 Model Rule Comparison

Division (a) is identical to MR 1.4(a), with the following exceptions:

In division (a)(4) "promptly comply" has been replaced by "comply as soon as practicable"; "from the client" has been added after "information".

Division (b) is identical to MR 1.4(b).

Division (c) is added; there is no comparable provision in MR 1.4.

1.4:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rules 1.4(a) & (b): EC 7-8, 9-2.

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.4(c): DR 1-104.

1.4:200 Duty to Communicate with Client

  • Primary Ohio References: Ohio Rule 1.4(a)
  • Background References: ABA Model Rule 1.4(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 9.35, 9.38
  • Commentary: ABA/BNA § 31:501, ALI-LGL § 20, Wolfram §§ 4.5, 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 §§ 9.35, 9.38 (1996).

Ohio Rule 1.4 contains an explicit, comprehensive obligation on the part of a lawyer to communicate with clients. In the words of ABA, Annotated Model Rules of Professional Conduct 55 (6th ed. 2007) (commentary), this is "among the most fundamental of the lawyer's obligations to the client." It includes informing the client of any circumstance requiring the client's informed consent and of the status of the matter (subdivisions (a)(1) & (3)), consulting as to the means by which the client's objectives can be achieved ((a)(2)), complying with client requests for information ((a)(4)), and consulting with the client when the lawyer knows the client expects assistance not permitted by the Rules. (Subdivision (a)(5)). Under division (b), the lawyer must provide the client with the information necessary to permit the client to make informed decisions about matters arising during the representation. And, pursuant to a provision not found in the Model Rules, the lawyer must inform the client if the lawyer does not have a minimum amount of professional-liability insurance. (Division (c)).

Although there was no disciplinary rule directly addressing the issue, case law under the former OHCPR generally confirmed this obligation of communication. See Golauskas v. Elyria Foundry Co., 145 Ohio App.3d 490, 763 N.E.2d 645 (Lorain 2001) (citing both former OH EC 7-7 and 7-8 in support of proposition that settlement offer must be transmitted by attorney to client). See generally Bd. of Comm'rs on Grievances & Discipline Op. 88-30, 1988 Ohio Griev. Discip. LEXIS 13 (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.

Id. at *2-3. And see Ohio State Bar Ass'n Informal Op. 74-6 (Mar. 22, 1974) (citing to former OH EC 9-2 in opining that criminal-defense lawyer should disclose to his clients in cases pending in X county that his brother-in-law is prosecuting attorney for X county).

A classic example under the Code of serial “fail[ure] to communicate with clients” is Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236, 2008 Ohio 2224, 887 N.E.2d 1176.  Broschak was indefinitely suspended for a wide range of disciplinary violations, but prominent among them was the persistent communication failure.  Everyone of the eight counts in the complaint contained instances of respondent’s failure to respond to client requests or to provide information important to the representation (such as failure to inform his client of the dismissal of the client’s appeal).  If the Rules had been applicable, he clearly would have been guilty of multiple violations of 1.4(a) & (b).

This general duty of communication was enforced under the Code primarily through invocation of OH DR 6-101(A)(3), the prohibition against neglect of an entrusted legal matter. Examples of these 6-101(A)(3) failure-to-communicate decisions, which would now violate Rule 1.4(a)(3) (obligating the lawyer to keep the client informed about the status of the matter), include, in addition to Broschak, Cincinnati Bar Ass'n v. Schwieterman, 115 Ohio St.3d 1, 2007 Ohio 4266, 873 N.E.2d 810 (failure to inform client that he was no longer with law firm and that he would be unavailable for a month); Cuyahoga County Bar Ass'n v. Britt, 109 Ohio St.3d 97, 2006 Ohio 1933, 846 N.E.2d 39 (even though client nurse "desperately wanted a hearing before the nursing board to explain the extraordinary circumstances of her situation," respondent not only elected in the exercise of his "professional judgment" not to file the hearing request; he also failed to inform his client of this fact, id. at paras. 5-6; as a result, client likely received more severe sanction than she would have if hearing had been held; DR 6-103(A)(3) violated, among other rules); Office of Disciplinary Counsel v. Kelley, 93 Ohio St.3d 409, 755 N.E.2d 338 (2001) (failure to inform client of court order to pay temporary child support); Cuyahoga Bar Ass'n v. Belkin, 92 Ohio St.3d 12, 748 N.E.2d 21 (2001) (failure to advise clients of court's grant of summary judgment against them, resulting in clients' inability to appeal decision); Cleveland Bar Ass'n v. Glatki, 88 Ohio St.3d 381, 726 N.E.2d 993 (2000) (numerous failures to communicate with clients about their cases, despite repeated inquiries by clients, violated OH DR 6-101(A)(3)).

Failures of this sort also can result in viable malpractice claims. See Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989) (failure to disclose to client settlement offer in civil action and failure to communicate to client prosecutor's offer to dismiss charges in return for testimony in criminal action supported claim of malpractice). 

A lawyer's ignoring reasonable requests for information about the representation, also treated as neglect under the Code, would transgress Ohio Rule 1.4(a)(4).  For examples of such cases under the Code, see, again in addition to Broschak, Butler County Bar Ass'n v. Schoonover, 105 Ohio St.3d 472, 2005 Ohio 2816, 828 N.E.2d 1007 (failure to keep regular hours, no office staff, checked for messages only once a week or so, answering machine usually full so that clients unable to leave messages); Glatki supra; Cleveland Bar Ass'n v. Stranathan, 71 Ohio St.3d 303, 643 N.E.2d 1077 (1994) (failure to respond to client inquiries). Another pre-Rule case that demonstrates the importance of the 1.4(a)(4) duty of complying "as soon as practicable with reasonable requests for information from the client" is Cleveland Bar Ass'n v. Kodish, 110 Ohio St.3d 162, 2006 Ohio 4090, 852 N.E.2d 160.  In Kodish, in numerous instances and with numerous clients, respondent repeatedly "ignored her client's efforts to communicate about the pending bankruptcy case," id. at para. 8, resulting in multiple violations of former OH DR 6-101(A)(3).

An additional OH DR 6-101(A)(3) case involving the duty of communication was Cuyahoga County Bar Ass'n v. Hardiman, 100 Ohio St.3d 260, 2003 Ohio 5596, 798 N.E.2d 369, in which the Supreme Court held that this rule could be violated in the absence of an express attorney-client relationship. In rejecting respondent's argument that no attorney-client relationship was formed because the client paid only a part of the requested retainer, the Court stated as follows with respect to the duty of communication in the circumstances:

Based on Moore's [the client] attempted communications, his partial payment, and respondent's knowledge of the legal subject matter, respondent had a duty to inform Moore that he would not perform any work on the matter until full payment was received. We find that under these circumstances, an implied attorney-client relationship was formed, and respondent was entrusted with a legal matter, which he neglected.

Id. at ¶ 11 (bracketed material added). See section 1.2:210.

Other Rules imposing a duty to communicate with the client include:

  • Ohio Rule 1.5(e)(2), pursuant to which a division of fees by lawyers not in the same firm can be made only if the client has given written consent after full disclosure of the identity of each lawyer, that the fees will be divided, and that the division will be proportionate to services performed by each lawyer or that each lawyer assumes joint responsibility for the representation. See, under the former OHCPR, Bd. of Comm'rs on Grievances & Discipline Op. 2003-3, 2003 Ohio Griev. Discip. LEXIS 3 (June 6, 2003) (in all such cases, "each lawyer and client must sign a written disclosure of the terms of the division and the identity of all lawyers sharing in the fee." Id. at *1). See section 1.5:800.

  • Ohio Rule 1.6(a) permits the lawyer to reveal information relating to the representation with the client's informed consent, which, of course, posits communication by the lawyer sufficient to render the client's consent informed. As is stated in ABA, Annotated Model Rules of Professional Conduct 51 (5th ed. 2003) (commentary), "a lawyer's duty to obtain client consent necessarily implies a duty to discuss the matter with the client." See Lightbody v. Rust, 137 Ohio App.3d 658, 739 N.E.2d 840 (Cuyahoga 2000), and section 1.6:310.

  • Ohio Rule 1.7, in dealing with current-client conflicts of interest, permits the conflict to be waived by the client only upon giving informed consent, confirmed in writing (Rule 1.7(b)(2)), provided the representation is not precluded, irrespective of waiver, by Rule 1.7(c). Cases decided under the Code include Stark County Bar Ass'n v. Buttacavoli, 96 Ohio St.3d 424, 2002 Ohio 4743, 775 N.E.2d 818, at para. 14 (for conflict waiver "informed consent by the clients must be obtained after full disclosure"); Cincinnati Bar Ass'n v. Schwartz, 74 Ohio St.3d 984, 660 N.E.2d 422 (1996) (OH DR 5-105(C) violated where attorney failed to advise clients possessing competing interests of any potentially adverse effects that might cause attorney to support for one client what his duty for other client required him to oppose). Accord Bd. of Comm'rs on Grievances & Discipline Op. 2003-1, 2003 Ohio Griev. Discip. LEXIS 1 (Apr. 11, 2003). Compare Burton v. Selker, 36 F. Supp.2d 984 (N.D. Ohio 1999), aff'd, 30 Fed. Appx. 456 (6th Cir. 2002) (full disclosure and consent; waiver letter signed by client cured any conflict). Cf. Bd. of Comm'rs on Grievances & Discipline Op. 93-3, 1993 Ohio Griev. Discip. LEXIS 9 (Apr. 16, 1993) (improper for creditor's attorney to confess judgment pursuant to warrant of attorney in cognovit note unless warrant contained express waiver of conflict of interest or specified that creditor's attorney could confess judgment). See sections 1.7:240 & :300.

    Note that the BCGD opined, under the Code, that where there are "interrelated multiple business transactions that impact the attorney-client relationship, the requirement of full disclosure and informed consent would be difficult to meet without the benefit of independent legal counsel for each client." Bd. of Comm'rs on Grievances and Discipline Op. 2002-2, 2002 Ohio Griev. Discip. LEXIS 2, at *1 (Apr. 5, 2002). Note further that where former OH DR 5-101(A)(1) was intertwined with violations of disciplinary rules that did not provide any exception for client consent, such as former OH DR 2-103(B) (now Rule 7.2(b)) and 3-103 (now Rule 5.4(b)), the consent exception was inapplicable. Bd. of Comm'rs on Grievances & Discipline Op. 2002-1, 2002 Ohio Griev. Discip. LEXIS 1, at *12 (Feb. 1, 2002) (since two of the four applicable disciplinary rules did not provide for client consent, "the ethical conflict cannot be alleviated through full consent and disclosure."). Accord Bd. of Comm'rs on Grievances & Discipline Op. 2000-1, 2000 Ohio Griev. Discip. LEXIS 1 (Feb. 11, 2000). See section 1.7:500.

  • Ohio Rule 1.8(a) likewise requires informed consent in a writing signed by the client ((a)(3)) after full disclosure in writing ((a)(1)) before a lawyer can enter into a business transaction with a client or knowingly acquire a pecuniary interest adverse to the client. The client must also be advised in writing of the desirability of seeking the advice of independent legal counsel with respect to the transaction. Rule 1.8(a)(2). Pertinent authority under the former OHCPR includes Buttacavoli supra; Cincinnati Bar Ass'n v. Hovey, 78 Ohio St.3d 495, 678 N.E.2d 1369 (1997) (respondent's entering into business transaction with client, despite differing interests and without full disclosure, violated OH DR 5-104(A)); Cincinnati Bar Ass'n v. Hartke, 67 Ohio St.3d 65, 616 N.E.2d 186 (1993) (same; since client under disability, lawyer could not satisfy disclosure requirement without insisting that client receive independent legal advice). See Bd. of Comm'rs on Grievances & Discipline Op. 2004-8, 2004 Ohio Griev. Discip. LEXIS 12 (Oct. 8, 2004) (attorney may acquire mortgage on client's home to secure legal fee, but only after full disclosure and consent); Bd. of Comm'rs on Grievances & Discipline Op. 2002-2, 2002 Ohio Griev. Discip. LEXIS 2, discussed above. See sections 1.7:500 and 1.8:220.

  • Ohio Rule 1.8(f)(1) provides that a lawyer shall not accept compensation for his legal services from someone other than the client, except with the informed consent of the client.  Office of Disciplinary Counsel v. Linick, 84 Ohio St.3d 489, 705 N.E.2d 667 (1999) (former OH DR 5-107(A)(2) violated where in-house lawyer received payments from outside lawyers for client without client's knowledge or consent, pursuant to kickback scheme); Cincinnati Bar Ass'n v. Schwartz, 74 Ohio St.3d 489, 660 N.E.2d 422 (1996) (former OH DR 5-107(A)(1) violated where respondent accepted compensation from client's health-insurance carrier without full disclosure to, or informed consent by, client). And see Bd. of Comm'rs on Grievances & Discipline Op. 2001-3, 2001 Ohio Griev. Discip. LEXIS 4 (June 7, 2001) (lawyer may obtain loan from third-party financial institution to pay expenses of contingent-fee personal injury litigation, provided loan is not secured by client's settlement or judgment; under OH DR 5-107(A)(2) lawyer should inform client that law firm is obtaining loan for purposes stated and obtain client's consent thereto); Bd. of Comm'rs on Grievances & Discipline Op. 2000-1, 2000 Ohio Griev. Discip. LEXIS 1 (Feb. 11, 2000) (ethically improper for lawyer to accept fee from financial-services group for referring clients in need of financial services; referral-fee arrangement created financial interest that would or reasonably might affect professional judgment of lawyer under OH DR 5-107(A)(1) & (2), and informed consent did not resolve conflict because another applicable rule (OH DR 3-103(A)) provided no disclosure and consent exception); Bd. of Comm'rs on Grievances & Discipline Op. 93-3, 1993 Ohio Griev. Discip. LEXIS 9 (Apr. 16, 1993) (improper under OH DR 5-107(A)(1) & (2) for attorney to accept legal fee from creditor for confessing judgment pursuant to warrant of attorney in cognovit note unless warrant contains express consent by debtor that confessing attorney may receive legal fee from creditor); Bd. of Comm'rs on Grievances & Discipline Op. 90-22, 1990 Ohio Griev. Discip. LEXIS 3 (Oct. 12, 1990) (lawyer may represent grantor of trust and at same time receive portion of fee from trustee bank only after client has knowledge of entire transaction and consents to fee arrangement). See section 1.8:710.

  • Ohio Rule 1.8(f)(4) provides that a lawyer compensated by an insurer to represent the insured under the policy must deliver a copy of the "Statement of Insured Client's Rights" to the client, either in person at the first meeting with the client or by mail within ten days after the lawyer receives notice of retention by the insurer. The Statement of Insured Client's Rights is set forth in full as a part of Rule 1.8(f)(4). See section 1.8:720.

  • Ohio Rule 1.8(g), dealing with aggregate settlements of civil claims of or against two or more clients, or in a criminal case an aggregated agreement as to guilty or nolo pleas, prohibits same unless the settlement or agreement is subject to court approval or each client gives informed consent in a writing signed by the client. The lawyer's disclosure must include the existence and nature or all claims or pleas involved and of the participation of each person in the settlement. Id. See Butler County Bar Ass'n v. Barr, 64 Ohio St.3d 20, 591 N.E.2d 1200 (1992) (failure to fully advise one client as to claims involved in proposed aggregate settlement on her and another client's behalf and failure to obtain her consent in advance of settlement violated former OH DR 5-106(A)). See section 1.8:800.

  • Ohio Rule 1.15(d) requires that upon receiving funds or other property in which a client has an interest, a lawyer shall "promptly notify the client." Under former OH DR 9-102(B)(1), a lawyer's failure to notify a client of funds received by the lawyer in settlement of a claim against an estate was sanctionable under that provision, Cincinnati Bar Ass'n v. Walker, 28 Ohio St.3d 102, 502 N.E.2d 646 (1986), as was the failure to notify the client of receipt of insurance proceeds, Bar Ass'n of Greater Cleveland v. Jaeger, 22 Ohio St.3d 39, 488 N.E.2d 216 (1986), or funds received in payment of a judgment.  Ohio State Bar Ass'n v. Cantagallo, 6 Ohio St.3d 10, 451 N.E.2d 224 (1983). Among more recent cases finding violations of OH DR 9-102(B)(1), see Office of Disciplinary Counsel v. Goldberg, 94 Ohio St.3d 337, 763 N.E.2d 119 (2002) (respondent, as attorney for estate, received checks payable to executor in excess of $740,000 but failed to notify anyone connected with estate that he had received these funds); Toledo Bar Ass'n v. Slack, 88 Ohio St.3d 274, 725 N.E.2d 63 (2000) (respondent settled personal-injury claim without client's knowledge and then did not forward check and concealed fact of settlement from client for four years); Toledo Bar Ass'n v. Gatwood, 83 Ohio St.3d 227, 699 N.E.2d 461 (1998) (after receipt of settlement proceeds from insurance company in personal-injury case, respondent continued to tell client that money from insurance company would be forthcoming). See section 1.15:220.

  • Ohio Rule 1.16(d) provides that upon termination of representation a lawyer shall take steps, to the extent reasonably practicable, to protect a client's interest. This includes "giving due notice to [the] client." Id. See Cincinnati Bar Ass'n v. Keplar, 93 Ohio St.3d 134, 753 N.E.2d 170 (2001) (closing office without notice to clients violated analogous Code provision, OH DR 2-110(A)(2)); cf. Trumbull County Bar Ass'n v. Donlin, 76 Ohio St.3d 152, 666 N.E.2d 1137 (1996) (fact that notice to client of withdrawal was not in writing did not rise to level of OH DR 2-110(A)(2) violation). See section 1.16:500.

  • Ohio Rule 1.17(e) mandates that, prior to the completion of the sale of a law practice, both the selling and buying lawyer must provide written notice of the sale to the selling lawyer's clients. (This is the obligation of the purchasing lawyer where the seller is the estate of a deceased lawyer or the representative of a disabled or disappeared lawyer. Ohio Rule 1.17(f)). See section 1.17:300.

In Office of Disciplinary Counsel v. Clavner, 77 Ohio St.3d 431, 674 N.E.2d 1369 (1997), the Court publicly reprimanded a lawyer for failing to advise her clients to seek independent counsel before the clients signed a release exonerating the lawyer from further legal action against her. Although former OH DR 6-102 by its terms precluded such exoneration, the Supreme Court elaborated as follows:

We do not read this rule so as to prohibit an attorney from ever raising a defense against or attempting to settle a malpractice action. However, this rule places an attorney on notice that when a client has a potential cause of action for malpractice, the attorney and the client are adversaries. . . . [C]ourts and professional ethics committees have said that a potential malpractice claim may be settled only if the client consents after full disclosure, the settlement is not unconscionable, inequitable, or unfair, and, most important, the client is advised to seek independent counsel before signing the agreement. [Citations omitted.]

. . . She [respondent] should have informed her clients of this adversarial relationship and their right to independent counsel before they signed the release. No good intentions on the part of respondent to spare the clients harm and no careful explanation of the terms of the release can excuse the violation of DR 6-102(A).

Id. at 432, 674 N.E.2d at 1370. See Cleveland Bar Ass'n v. Smith, 102 Ohio St.3d 10, 2004 Ohio 1582, 806 N.E.2d 495, at ¶ 3.

Rule 1.8(h)(1) now provides that a lawyer may not prospectively limit malpractice liability (or require arbitration of claims against the lawyer) unless the client is in fact independently represented in making the agreement. See section 1.8:920.

While it is ultimately the client's right in a criminal case to decide on the plea to be entered and in a civil case whether to settle, to make this right meaningful counsel "must" convey to the client the substance of all proferred plea bargains and settlement offers. Ohio Rule 1.4 cmt. [2]. For a Code case in which, had the Rules of Professional Conduct been applicable, the misconduct would have violated Rule 1.4, see Columbus Bar Ass’n v. Hayes, 118 Ohio St.3d 336, 2008 Ohio 2466, 889 N.E.2d 109 (failure to make client aware of plea offer in criminal case). See also section 1.2:320.

1.4:300 Duty to Consult with Client

  • Primary Ohio References: Ohio Rule 1.4(a) & (b)
  • Background References: ABA Model Rule 1.4(a) & (b)
  • Ohio Commentary: Greenbaum, Laywer's Guide to the Ohio Code of Professional Responsibility §§ 7.20, 7.22
  • Commentary: ABA/BNA § 31:501, ALI-LGL § 20, Wolfram § 4.5

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 §§ 7.20, 7.22 (1996).

The outline for this treatise makes a distinction between the duty to "communicate" (section 1.4:200) and the duty to "consult" (section 1.4:300). This is based, in large part, on the pre-2002 amendment version of MR 1.4, pursuant to which a lawyer was required to keep the client "reasonably informed about the status of a matter and promptly comply with reasonable requests for information" (MR 1.4(a)) and to "explain" a matter so that the client could make informed decisions (MR 1.4(b)). While MR 1.4(b) is unchanged after the 2002 amendments, MR 1.4(a) (2002) now contains a to-do list that includes consultation, as well as merely providing information on the status of the case and the like. These provisions have been included in Ohio as Rules 1.4 (a)(1)-(5) and (b). This 1.4(a) listing, together with the explanation needed for informed client decisions mandated by Rule 1.4(b), provides a helpful checklist for any Ohio lawyer in terms of the overall communication duty. Pursuant to 1.4(a), the lawyer must:

(1) inform the client of any decision requiring the client's informed consent,

(2) consult with the client about the means by which the client's objectives are to be accomplished,

(3) keep the client informed about the status of a matter,

(4) respond as soon as practicable to reasonable requests for information from the client, and

(5) consult with the client about limitations on the lawyer's representation when the lawyer knows that the client expects assistance not permitted by the ethics rules.

Ohio Rule 1.4(b) mandates that the lawyer "shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Accord 1 Restatement (Third) of the Law Governing Lawyers §  20(3) (2000). And, as Professor Greenbaum advises:

Even in areas where decision-making authority rests with the lawyer, 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.

Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.22 (1996) (citing former OH EC 7-8 and Bd. of Comm'rs on Grievances & Discipline Op. 88-30, 1988 Ohio Griev. Discip. LEXIS 13 (Dec. 21, 1988)). Accord 1 Restatement (Third) of the Law Governing Lawyers §  20(1) (2000). Professor Greenbaum also stresses that "[b]road-based consultation between lawyer and client on both legal and non-legal considerations involved in the representation is encouraged." Greenbaum at §  7.20. Note, however, that this encouragement does not go so far as to approve the lawyer's serving in "'a self-appointed role as a paraclete, comforter, helper, or hand holder, under the guise of legal services and at a lawyer's compensation rate.'" Cincinnati Bar Ass'n v. Alsfelder, 103 Ohio St.3d 375, 2004 Ohio 5216, 816 N.E.2d 218 (quoting from a Tennessee Supreme Court ethics decision; respondent "attempted to charge for his counsel in the manner that a therapist might, overlooking that an attorney, unless a qualified therapist, may no more engage in that profession than a therapist may practice law without a license." Id. at para. 33). See further discussion at section 2.1:300.

A detailed discussion by the Ohio Supreme Court of this duty of consultation, or "counseling" under the former OHCPR, is found in Office of Disciplinary Counsel v. Hardesty, 80 Ohio St.3d 444, 687 N.E.2d 417 (1997). In Hardesty, the respondent yielded to the wishes of a number of his clients when he should have done otherwise. The Board found this to be a mitigating factor, but the Court disagreed. It proceeded to give a lecture on "hired guns," who act "solely at the direction of their employers or clients . . . ."  Id. at 447, 687 N.E.2d at 419. This constitutes "neglecting their duty to counsel their clients":

Neither the position of an attorney as an employee, nor the pressure to retain a client in a competitive legal environment, can justify an attorney's abdication of the duty of counseling.

Id. Quoting extensively from former OH EC 7-8, the Supreme Court stressed the need to insure that client decisions are made only after the client is informed of the relevant considerations. Further, the lawyer should initiate the decision-making process if the client does not do so and should provide the client with advice on all aspects of the matter, not just purely legal considerations. This respondent did not do so; instead, he acted as a "hired gun" and "failed in his duty to counsel. We do not consider that a mitigating circumstance." Id. Another lecture on counseling was given in Columbus Bar Ass'n v. Flanagan, 77 Ohio St.3d 381, 674 N.E.2d 681 (1997), where the Court was confronted with a situation in which the respondent allowed an untrained employee to advise clients with respect to bankruptcy matters and filings. In the words of the Supreme Court:

The counseling of a client in financial matters, particularly about his or her choice of remedies under the Bankruptcy Code . . . is a serious matter that deserves the attention of a qualified attorney. . . .

* * * *

We expect that . . . respondent would at least interview and counsel his client before a course of action was chosen and the documents drafted.

We find respondent's actions totally unprofessional and an abdication of his duty to his clients. We adopt the board's finding that respondent violated DR 1-102(A)(6) and 6-101(A)(3).

Id. at 384, 674 N.E.2d at 683. Accord Akron Bar Ass'n v. Miller, 80 Ohio St.3d 6, 9, 684 N.E.2d 288, 291 (1997) ("'the lawyer's job is not merely to supply whatever means are needed to achieve the client's goals but also to deliberate with the client and on his behalf about these goals,"' quoting Anthony T. Kronman, The Lost Lawyer 132 (1993)).

The importance of consultation is also reflected in the criminal arena, in which a court's denial of defendant's right to employ and consult with counsel of choice may violate the Sixth Amendment right to counsel. See, e.g., Linton v. Perini, 656 F.2d 207 (6th Cir. 1981) (writ of habeas corpus granted).

1.4:400 Duty to Inform the Client of Settlement Offers

As Ohio Rule 1.2(a) provides, the decision whether to settle a matter resides with the client. See section 1.2:320. To exercise that authority, the client must be informed of settlement offers. Ohio Rule 1.4 cmt. [2]leaves no doubt that an Ohio lawyer is obligated to transmit to the client information concerning settlement offers and that it is a disciplinary violation if he or she does not do so. Among the many decisions so holding under prior law were:

  • Toledo Bar Ass'n v. Slack, 88 Ohio St.3d 274, 725 N.E.2d 631 (2000) (settling case without client's knowledge; failure to forward check and concealment of settlement from client for four years);

  • 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));

  • Office of Disciplinary Counsel v. Kornowski, 24 Ohio St.3d 50, 492 N.E.2d 833 (1986) (lawyer sanctioned for failure to communicate settlement offer);

  • Office of Disciplinary Counsel v. Sigall, 14 Ohio St.3d 15, 470 N.E.2d 886 (1984) (lawyer sanctioned for entering into settlement without discussing with client).

With the exception of Gunnoe, the rule violation common to all of these cases was former OH DR 6-101(A)(3) (neglect).

1.4:500 Duty to Inform Client of Lack of Malpractice Insurance

  • Primary Ohio References: Ohio Rule 1.4(c)

Lawyers in Ohio are not required to carry malpractice insurance unless they practice "as part of a legal professional association, corporation, legal clinic, limited liability company, or registered partnership." Ohio Rule 1.4 cmt. [8]. See also Gov Bar III 4. Nevertheless, many in the public may believe that all lawyers do carry such insurance.  Ohio Rule 1.4 cmt. [9]. In response to this concern, Rule 1.4(c) requires that a lawyer who does not carry a minimum amount of malpractice insurance ($100,000 per occurrence and $300,000 in the aggregate), or whose malpractice insurance has been terminated, must so inform his clients at the time of engagement (or thereafter if the absence of such coverage occurs after engagement). A standard form of notice is appended to the Rule, as is a form of acknowledgement by the client that she has received the requisite notice. The lawyer must maintain a copy of the notice, as acknowledged by the client, for a minimum of five years after termination of the representation. Rule 1.4(c)(1). A lawyer involved in a division of fees under Rule 1.5(e) must notify the client in accordance with Rule 1.4(c) before the client is asked to agree to the fee division. Rule 1.4(c)(2). The notice provision does not apply to either government or in-house lawyers. Rule 1.4(c)(3).

Supreme Court decisions finding violation of former OH DR 1-104 where the respondent carried no malpractice insurance but failed to inform his clients of that fact, as required, include, e.g., Disciplinary Counsel v. Sabol, 118 Ohio St.3d 65, 2008 Ohio 1594, 886 N.E.2d 191, Cleveland Bar Ass'n v. Norton, 116 Ohio St.3d 226, 2007 Ohio 6038, 877 N.E.2d 964; Toledo Bar Ass'n v. Shousher, 112 Ohio St.3d 553, 2007 Ohio 611, 861 N.E.2d 536. In Cincinnati Bar Ass'n v. Trainor, 110 Ohio St.3d 141, 2006 Ohio 3825, 851 N.E.2d 505, the same rule was found to have been violated when the respondent failed to advise his client that his liability insurance had been cancelled. (See also Dayton Bar Ass'n v. Engel, 105 Ohio St.3d 49, 2004 Ohio 6900, 822 N.E.2d 346, where respondent was not charged with violation of OH DR 1-104, but his breach of it was considered by the panel as an aggravating factor in imposing a penalty.) In Bd. of Comm'rs & Discipline Op. 2003-3, 2003 Ohio Griev. Discip. LEXIS 3 (June 6, 2003), the Board opined that, in a division of fees by lawyers not in the same firm, each lawyer was responsible for providing the required written notice under former OH DR 1-104(A), and signatures of each lawyer and the client were required on the notice. This is consistent with Rule 1.4(c)(2), which was not contained in DR 1-104 (even though the Ohio Code Comparison to Rule 1.4 states that 1.4(c) "adopts the existing language in DR 1-104").

Bd. of Comm'rs on Grievances & Discipline Op. 2007-6 (August 10, 2007), opined that a court-appointed lawyer for an indigent defendant is not required to provide notice that the lawyer does not maintain professional liability insurance, since such a lawyer falls within the governmental entity exception in Rule 1.4(c)(3)(i).