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Ohio Legal Ethics Narrative

III ADVOCATE

3.2 RULE 3.2 EXPEDITING LITIGATION

THE NOTE TO RULE 3.2 STATES THAT MR 3.2 IS NOT ADOPTED IN OHIO, BECAUSE "THE SUBSTANCE OF MODEL RULE 3.2 IS ADDRESSED BY OTHER PROVISIONS OF THE OHIO RULES OF PROFESSIONAL CONDUCT, INCLUDING RULES 1.3 [DILIGENCE], 3.1 [MERITORIOUS CLAIMS AND CONTENTIONS], AND 4.4(a) [RESPECT FOR RIGHTS OF THIRD PERSONS]." (Bracketed material in original.)

Ohio had no disciplinary rule comparable to MR 3.2, which deals with dilatory practices in litigation. The former OHCPR treated delay in two respects: First, as a form of neglect, for which the lawyer was subject to sanction under OH DR 6-101(A)(3). This provision, including the delay aspect, is treated in sections 1.3:200-:300 of the treatise. The treatise Rule 1.3 "delay" cases are procrastination cases. See section 1.3:300. Second, the lawyer was obligated under OH DR 7-102(A)(1) not to, among other things, "delay a trial" "when he knows or it is obvious that such action would serve merely to harass or maliciously injure another." This aspect of OH DR 7-102(A)(1) required dilatory action (or inaction) with knowing or objective intent to harass or injure. (MR 3.2 has no such express-intent caveat; it requires the lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client. Note, however, that pursuant to the comment, a failure to expedite is not reasonable if done "for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose." MR 3.2 cmt. [1].) Insofar as the disciplinary cases under OH DR 7-102(A)(1) involved such intentional, dilatory litigation tactics, they are treated as a part of section 3.2:200 below. (The aspects of former OH DR 7-102(A)(1) other than delay are discussed in section 4.4:200.)

3.2:100 Comparative Analysis of Ohio Rule

3.2:101 Model Rule Comparison

Ohio did not adopt MR 3.2 and substituted nothing in its place. See introductory paragraph above.

3.2:102 Ohio Code Comparison

See section 3.2:101.

3.2:200 Dilatory Tactics

  • Primary Ohio References: None
  • Background References: ABA Model Rule 3.2
  • Commentary: ABA/BNA § 61:202; ALI-LGL § 106; Wolfram § 11.2.5

The Ohio case law on intentionally dilatory litigation tactics is somewhat sparse. Nevertheless, there were a few Supreme Court disciplinary cases under the Code that dealt with former OH DR 7-102(A)(1) violations. For example, in Columbus Bar Ass'n v. Finneran, 80 Ohio St.3d 428, 687 N.E.2d 405 (1997), the Court (citing the delay language in both OH Civ R 11 and OH DR 7-102(A)(1)) found that respondent's dilatory tactics (a pattern, in personal injury suits, of taking dismissals without prejudice under OH Civ R 41 in order to avoid having to respond to discovery requests, coupled with repeated refilings, most of which ultimately ended in dismissals with prejudice) violated OH DR 7-102(A)(1) and called for an indefinite suspension:

DR 7-102(A)(1) provides that a lawyer shall not "conduct a defense, delay a trial, or take other action on behalf of his client * * * when it is obvious that such action would serve merely to harass or maliciously injure another." Dilatory practices bring the administration of justice into disrepute. As the American Bar Association stated in its comments to Rule 3.2 of its Model Rules of Professional Conduct, "Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose." ABA/BNA Lawyers' Manual on Professional Conduct (1990), at 01:147. Engaging, as respondent did, in a procedure or tactic that had no purpose other than delay constituted representation outside the spirit and intent of our law. We conclude that the tactics of delay employed by respondent violated DR 7-102(A)(1).

Id. at 431-32, 687 N.E.2d at 407-08 (ellipsis in original). In Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993), one of the numerous charges against the respondent concerned his deposition during the disciplinary process, at which he was to produce documents pursuant to subpoena. O'Leary appeared, but without the documents. The deposition was rescheduled and a more detailed subpoena issued. At the second deposition, O'Leary produced only one document called for by the subpoena. "The second deposition was held nearly three months after the first, yet O'Leary complained of insufficient time to locate his files."  Id. at 427, 619 N.E.2d 411. For this violation of Gov Bar R V(5)(A) and a host of OHCPR violations, including OH DR 7-102(A)(1), O'Leary was disbarred. See also Cincinnati Bar Ass'n v. Sullivan, 65 Ohio St.3d 293, 603 N.E.2d 983 (1992) (multiple efforts to delay proceedings, one of which was expressly noted as designed to "drag this out" in accordance with client's wishes, violated numerous provisions of the OHCPR and resulted in indefinite suspension, although, curiously, the list of violations did not include OH DR 7-102(A)(1)).

A group of disciplinary cases involving a practice then common in traffic and criminal matters in Toledo Municipal Court should also be noted, even though OH DR 7-102(A)(1) was not invoked. In the Toledo cases, a defense lawyer would be entrusted with the affidavit specifying the alleged offense and containing the history of the proceedings in the case but then would fail to return it to the court file until requested to do so. While the affidavit was out of the file, the case would not proceed. While various excuses were given for this delaying tactic, the lawyers involved were found guilty of violating provisions of the former OHCPR, usually OH DR 1-102(A)(5) and OH DR 7-102(A)(8). E.g., Toledo Bar Ass'n v. Wittenberg, 60 Ohio St.3d 94, 573 N.E.2d 641 (1991). These cases are discussed in more detail in section 8.4:500 at "Misconduct directed at a tribunal."

A number of contempt cases also can be cited in which the attorney's conduct, rather than expediting litigation, purposefully hindered, disrupted, or delayed it. See, e.g., State ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St.3d 120, 449 N.E.2d 445 (1983) (in-court assault on officer of opposing party minutes before proceeding in court of appeals was scheduled to begin, resulting in delay of proceeding); State v. Wilson, 30 Ohio St.2d 312, 285 N.E.2d 38 (1972) (constant interruptions and refusals to obey trial court orders resulted in "actual interruption of the court in the conduct of its business," id. at 314, 285 N.E.2d at 40). Compare City of Cleveland v. Heben, 74 Ohio App.3d 568, 599 N.E.2d 766 (Cuyahoga 1991) (summary contempt of lawyer affirmed), with In re Contempt of Rossman, 82 Ohio App.3d 730, 613 N.E.2d 241 (Cuyahoga 1992) (summary contempt of lawyer reversed). These two cases were decided by the same panel, and Judge Krupansky dissented in both. In Heben, while he agreed that the lawyer's remark ("I have no respect for this Court") "may have been ill-mannered, his conduct posed no 'actual or imminent' threat to the administration of justice." 74 Ohio App.3d at 575, 599 N.E.2d at 770. In Rossman, Judge Krupansky thought the lawyer's refusal to proceed with voir dire, contrary to the court's direct order to so do, thereby forcing the halt of the voir dire process and a delay in the trial, was an obstruction of justice that the trial court properly punished summarily. See further discussion of these cases at section 3.5:400.

One of the most extensive discussions by the Ohio Supreme Court of dilatory tactics in litigation and matters preceding litigation occurs in a nondisciplinary context in the case of State ex rel. Ryant Comm. v. Lorain County Bd. of Elections, 86 Ohio St.3d 107, 712 N.E.2d 696 (1999). In Ryant, a group of voters had challenged a petition placing a zoning amendment on the ballot for a special election. At the same time, the challengers sought subpoenas "but did not inform the board [of elections] of any specific individuals or records that they wanted subpoenaed." Id. at 109, 712 N.E.2d at 698. In response to arguments that the challenge did not specify which signatures on the petition were being challenged, the challengers took the position that they would not provide this information until the board ordered them to do so because this information was deemed to be attorney-work product. Thereafter, the board ordered that this and other information be produced by a certain date. After the date had passed, the challengers notified the board that a handwriting expert would testify at a protest hearing. At this initial protest hearing, the challengers withheld their handwriting expert because only two of the four board members were present. On the day of the initial hearing, the challengers filed yet another protest, challenging additional signatures on the petition. At the final protest meeting, with three board members present, the handwriting expert testified that ten signatures were not written by the purported signatories (four of these had previously been invalidated by the board). Since the petitions had already been determined to contain over 2,000 valid signatures (80 more than required), the protest was denied and the rezoning issue certified for the special election ballot. A week prior to this final hearing, the challengers (now relators) filed a writ of prohibition in the Supreme Court to prevent the board from conducting the special election.

The Supreme Court denied the writ on grounds of laches, finding that the relators failed to specify their objections as required by statute and failed to act with the diligence and promptness required in election matters:

The twenty-eight days between March 2 [when relators copied the petition] and March 30 [when they filed their protest] provided ample time for relators to review the part-petitions and board records to formulate specific objections to specific signatures. Instead, relators chose to include a laundry list of general, alleged defects. In the absence of specific objections, the board, the petitioners, and First Interstate [an intervenor] were left with one hundred twenty part-petitions containing over two thousand four hundred signatures and no notice of which specific signatures were being challenged and for what reasons.

Id. at 112-13, 712 N.E.2d at 701. Zeroing in on relators' dilatory tactics, the Court concluded as follows:

By not promptly submitting a statutorily sufficient protest and by engaging in acts of gamesmanship that did not assist the board in its objective of expeditiously determining their challenges, relators commenced a sequence of dilatory actions that necessitated our order to impound the ballots for the special election. If relators had acted with the requisite diligence, they would have been able to file an expedited election case that could have been submitted to the court pursuant to the expedited election schedule of [S Ct Prac R X (9)] well before the June 1 special election. Instead, relators' unjustified delaying tactics led to our impoundment order and resulted in prejudice to the electors of Avon.

Id. at 113-14, 712 N.E.2d at 701.

And see ORC 2323.51(A)(2)(a)(i), effective April 7, 2005, which includes improperly "causing unnecessary delay" as within the definition of "frivolous conduct" in a civil action.

3.2:300 Judicial Sanctions for Dilatory Tactics

  • Primary Ohio References: OH Civ R 11; ORC 2323.51, 2705
  • Background References: ABA Model Rule 3.2
  • Commentary: ABA/BNA § 61:202; ALI-LGL § 106; Wolfram § 11.2.5

Judicial sanctions for dilatory tactics in or related to litigation include:

  • Imposition of sanctions under ORC 2323.51 and court rules governing frivolous filings. See Crawford v. Ribbon Tech. Corp., 143 Ohio App.3d 510, 758 N.E.2d 674 (Franklin 2001) ($1,000 in expenses and $3,230 in attorney fees imposed under ORC 2323.51). Both OH Civ R 11 and SCt R XIV(5)(A) expressly include action taken for the purpose of "delay" as a basis for the imposition of sanctions, but we found no Rule 11 cases expressly grounding sanctions on the delay aspect of the rule. Although the Supreme Court denied a motion for sanctions in the dilatory tactics case of State ex rel. Ryant Comm. v. Lorain County Bd. of Elections, 86 Ohio St.3d 107, 114 n.3, 712 N.E.2d 696, 702 n.3 (1999), one gets the impression from the opinion that the Court's imposition of sanctions pursuant to what is now SCt R XIV(5)(A) on the same lawyers in the later case of State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 716 N.E.2d 704 (1999), was at least in part a nunc pro tunc correction of the failure to sanction in Ryant. See  id. at 636, 716 N.E.2d at 711. See section 3.1:300.

  • Citation for contempt. See State ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St.3d 120, 449 N.E.2d 445 (1983) (direct criminal contempt; contemnor received jail sentence (suspended), was fined, and was assessed the costs of the contempt hearing); State v. Wilson, 30 Ohio St.2d 312, 285 N.E.2d 38 (1972) (affirmance of summary contempt finding; fine of $500 and five days in jail imposed by trial court, which jail sentence was suspended by court of appeals); City of Cleveland v. Heben, 74 Ohio App.3d 568, 599 N.E.2d 766 (Cuyahoga 1991) (direct criminal contempt; fine of $250 affirmed, imprisonment for 30 days found unreasonably excessive and reversed). See section 3.5:400.