MALPRACTICE ALERT! WINTER 2021

While making resolutions for the new year consider making some resolutions for your practice as well. Here are some suggestions:

Resolve to finally get around to creating that office procedure manual. A good office procedure manual will document all your office policies and procedures and serve as a resource to locate information that is critical to keep your business up and running, like computer passwords and vendor contact information.

Resolve to conduct a cyber security audit.

• Make sure that your anti-virus software and all other software on devices used in the practice are up to date.
• Make sure all lawyers and non-lawyer staff have had adequate training to identify cyber threats and protect against them.
• Check your back-ups. Make sure you are following the 3-2-1 formula and know how to access the back-up if necessary.
• Take a look at your Incident Response Plan to identify where updates are needed.

Recommit to good client communication.

• Confirm that every client file contains a fee agreement.
• Calendar reminders to send each client a monthly status letter.
• Create a file closing checklist that includes sending a file closing letter and client survey.

Resolve to rid yourself of problem clients. Promptly address any issues with non-payment and advise clients who have not paid that the failure to fulfill financial obligations will result in your withdrawal—and follow through.

Re-establish good IOLTA accounting practices.

• Reconcile the account every month. Do not rely solely on your staff to conduct these reconciliations. Checks and balances are important.
• Look for any unclaimed funds.
• Make sure that the IOLTA contains no more than the limited amount of personal funds necessary to cover bank charges. The Ohio Disciplinary Counsel advises that, “On average a lawyer should not have more than $100 of personal funds in the lawyer’s IOLTA unless the lawyer has documented proof of why the lawyer needs more.”

Pick one resolution or tackle them all. No matter where you start, your practice will benefit.

The new year is often when attorneys look ahead to plan for retirement.  Retirement can mean different things.  Here are some options to consider if the attorney wants to:

Continue to work “part-time” at current firm

• Must maintain Active Attorney Registration Status
• See Gov Bar R VI. Registration of Attorneys Section 2. Active Attorney Registration
• Notify OBLIC to change to Part-time coverage

Become “Of Counsel” at current firm

• See Ohio Board of Professional Conduct Opinion 2008-1, Opinion 2013-1,Opinion 2014-4, and Opinion 2020-7.
• Must maintain Active Attorney Registration Status
• Notify OBLIC of “Of counsel” status and discuss coverage

Retire from current firm and practice in their own firm, as a sole practitioner, or as a LPA, LLC, or LLP, as permitted by Gov. Bar R. III. Legal Professional Association Authorized to Practice Law, whether the attorney is full-time or part-time

• Must maintain Active Attorney Registration Status
• Apply to OBLIC for coverage for new firm entity

Retire from current firm, open their own firm and become “Of Counsel” 

• See Ohio Board of Professional Conduct Opinion 2008-1, Opinion 2013-1,Opinion 2014-4, and Opinion 2020-7.
• Must maintain Active Attorney Registration Status
• Notify OBLIC of “Of counsel” status and discuss coverage

Retire and cease the practice law

• May take Inactive Attorney Registration Status as an alternative to Retirement or Resignation
• See Gov. Bar R. VI. Registration of Attorneys Section 5. Inactive Attorney Registration
• Notify OBLIC and discuss “Tail” options

Attorney wants to provide limited legal service to pro bono organization recognized by Ohio Supreme Court

• May apply for Emeritus Pro Bono Status Registration
• See Gov. Bar R. VI.  Registration of Attorneys Section 8.  Emeritus Pro Bono Registration
• Notify OBLIC – pro bono organization provides professional liability insurance and discuss “Tail” options

Attorney wants to retire or resign from the practice of law

• May apply for Retirement or Resignation from the Practice of Law.  This status is   unconditional, final and IRREVOCABLE!
• See Gov. Bar R. VI. Registration of Attorneys Section 11. Retirement or Resignation from the Practice of Law
• Notify OBLIC and consider “Tail” options

Contact your OBLIC Underwriter to discuss available malpractice insurance options whatever option you select.

Scope of Representation and Conflict Checks:

Bar Processing Corp. v. Barnes, 2021 U.S. Dist. LEXIS 156353 (N.D. Ohio 2021)

• Outcome: The Court granted summary judgment in favor of the lawyer and his law firm.

• Factual Overview: Attorney Barnes was retained by his existing client to set up a new business that would compete with Plaintiff. Barnes also advised the client on non-compete obligations of an employee of Plaintiff that the client sought to hire for the new business. The conflict check did not catch that another attorney in Barnes’ firm represented Plaintiff on unrelated matters. Plaintiff incurred significant cost to prevent the client from proceeding with the competing business. Plaintiff sued Barnes and the firm alleging legal malpractice and breach of fiduciary duty.

• Legal Analysis: The Court concluded that Plaintiff could not establish legal malpractice because Barnes never represented Plaintiff. Plaintiff could not assert a third-party malpractice claim because Plaintiff was not in privity with Barnes’ client and Barnes did not act maliciously. Plaintiff also could not establish legal malpractice against the firm because “only individuals may practice law.” The Court held that imputation of a conflict of interest under the Rules of Professional Conduct cannot create an attorney-client relationship for purposes of civil liability where none otherwise exists. The Court also held that Plaintiff could not establish a breach of fiduciary duty because there was no relationship of special confidence and trust between Plaintiff and Barnes.  The Court also noted that “malpractice by any other name still constitutes malpractice” and a litigant must rely on conduct that is distinct from the conduct underlying the malpractice claim to assert a claim of breach of fiduciary duty.

Musser v. Youngstown Orthopaedic Association, Ltd., 2021-Ohio-4301

• Outcome: The 7^th District Court of Appeals upheld the trial court’s decision disqualifying the law firm as counsel for defendant Youngstown Orthopaedic Association, Ltd. (“YOA”) due to a conflict of interest with its former client, Dr. Musser.

• Factual Overview: The case involves a dispute between YOA and Dr. Musser over Dr. Musser’s attempt to withdraw as a member of YOA. In 2020, Dr. Musser filed a complaint for declaratory judgment and breach of contract against YOA. The firm entered an appearance on behalf of YOA. Dr. Musser moved to disqualify the firm based on a conflict of interest. Dr. Musser pointed out that the firm had represented Dr. Musser in what was only described in the decision as “the Other Case.” Dr. Musser also consulted with a member of the firm in 2010 regarding his buy-in to YOA and whether he should proceed during the pendency of the Other Case. YOA opposed the motion arguing that the firm’s prior representation of Dr. Musser was not substantially related to the current litigation and that the firm did not obtain confidential information from Dr. Musser.  The trial court sided with Dr. Musser and found that the prior representation was substantially related and that the disclosure of shared confidences is presumed.  YOA appealed the trial court’s decision.

• Legal Analysis: The Court of Appeals concluded that the trial court did not abuse its discretion in granting the motion for disqualification. The Court found that the firm’s emails and billing records reflected that the firm’s representation of Dr. Musser on the Other Matter included counseling Dr. Musser on his business relationship with YOA and therefore the matters were substantially related. The Court relied upon Prof.Cond.R. 1.9 to conclude that, once an attorney advises one party to a contract in a matter related to the contract, the attorney cannot subsequently represent a new client in an adverse position to the former client upon the same contract. The Court was not dissuaded by evidence that the firm’s representation of Dr. Musser ended more than 7 years before Dr. Musser filed the complaint against YOA or by evidence that the operating agreement at issue had been amended several times in those intervening years. The Court also supported the trial court’s decision to apply a presumption of shared confidences and the trial court’s conclusion that YOA did not overcome that presumption. The Court acknowledged that YOA presented affidavits from all three attorneys involved in the prior representation denying that they had obtained confidences from Dr. Musser. However, the Court found it significant that YOA did not call these attorneys to testify at the hearing and, therefore, Dr. Musser did not have the opportunity to cross-examine them. For that reason, the Court concluded that these affidavits were insufficient to rebut the presumption of shared confidences.

Fee Agreements and Closing Letters:

Bohan v. McDonald Hopkins, LLC, 2021-Ohio-4131, 8^th Dist. Cuyahoga

• Outcome: The 8^th District Court of Appeals affirmed a grant of summary judgment to Attorney Wardega and his law firm.

• Factual Overview: The underlying legal matter involved the formation and subsequent sale of a business. One of Wardega’s long-time clients decided to start a new business with Plaintiff. At the request of the client and Plaintiff, Wardega drafted an operating agreement. There was no written fee agreement identifying which party Wardega represented or the scope of the representation.  However, Wardega acknowledged in an email that he represented the company that was created. No file closing letter was sent upon completion of the representation. Several years later Wardega’s client began negotiating for the sale of his businesses including the business created with Plaintiff.  Wardega communicated with Plaintiff on behalf of the client. After the sale of the business, Plaintiff sued Wardega and his firm alleging legal malpractice, breach of fiduciary duty and punitive damages. Plaintiff argued that the business was sold for less than it was worth. Wardega was granted summary judgment on the basis that there was not an attorney-client relationship with Plaintiff at the time of the sale. Plaintiff appealed.

• Legal Analysis: In the absence of a written fee agreement, the Court of Appeals engaged in a fact-specific analysis to determine whether an attorney-client relationship was established between Plaintiff and Wardega by implication. The Court concluded that it was not, in part, because “Ohio law has consistently held that an attorney’s representation of a corporation does not make that attorney counsel to the corporate officers and directors as individuals.”  The Court concluded that Wardega represented the business and that the scope of his representation was to draft an operating agreement and “perform tasks for the company on an ad hoc basis.” There was no file closing letter. So, the Court engaged in a fact specific analysis to determine when the relationship ended and whether Wardega still represented the company at the time of the sale. The Court concluded that, in the absence of a file closing letter, “the attorney-client relationship ends when the lawyer completes the task for which he was hired.”  The Court concluded that Wardega was hired to draft an operating agreement and “perform tasks for the company on an ad hoc basis.” Wardega’s involvement in the sale did not fall within the scope of that representation.

Research from the Commission on Dispute Resolution has resulted in proposed changes to the Rules of Superintendence for the Courts of Ohio for dispute resolution involving neutral evaluation and parenting coordination.  Proposed amendments to rules 16.50-16.55 will address requirements for neutral evaluators.  Proposed amendments to Rules 16.60-16.66 focus on the parenting coordinator.

The Ohio Supreme Court will accept public comment in writing or via email by January 6, 2022 to:

Marya Kolman
Dispute Resolution Section Manager
Supreme Court of Ohio
65 S. Front St., Sixth Floor
Columbus, OH 43215-3431
[email protected]
[email protected].