Former Client’s File

On August 2, 2019, the Board of Professional Conduct issued Board Op. 2019-6 on Ethical Obligations to Deliver a Former Client’s File.  The Board stated that the file represents the “papers and property” of the client.  The Board acknowledged that an attorney has no ethical obligation to maintain a client’s file for a minimum period of time after termination of the representation.  The attorney is required to deliver the file to the client upon the client’s request.  The file should be delivered in the same or substantially the same manner as it was maintained or in an accessible format if the file was digitally stored.

The Board opined that, even where the client has left her file with the attorney for a substantial period of time after the representation has concluded, the file still constitutes the client’s property and it must be delivered to the client upon the client’s request.

The papers that must be delivered are set forth in Prof.Cond.R. 1.16(d). It describes client papers as “correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation.”  This is not an all-inclusive list, however.  “[O]ther documents may include materials acquired or prepared for the purpose of representing the client, investigatory documents, and filed or unfiled pleadings and briefs.”

“[I]nternal law firm memoranda, firm communications or other administrative materials related to the representation, documentation concerning personnel assignments and conflict checks, the lawyer’s mental impressions, and drafts of pleadings, briefs, or other filings are not considered client papers or property to which the client is entitled. See Adv. Op. 2010-2, ABA Formal Op. 471 (2015), ABA Formal Op. 1376 (1977).”  “‘[C]lient papers or property’ do not include documents that may violate the duty of confidentiality to other persons, the lawyer’s own assessment of the client, or documents shielded from disclosure under state law or court protective order, e.g. designated as ‘counsel only’ under Crim.R. 16(C).”

Attorneys are entitled to maintain client files in digital format and may store them “in the cloud.”  The attorney is duty-bound to ensure that the digital storage medium is secure and take reasonable measures to protect the confidentiality and security of the client property.

The Board recommends that the attorney provide the file to the client in the format in which it is stored unless the client and attorney agree otherwise.  The client, however, must be able to access the documentation.  An attorney may not charge a client for keeping a copy of the file; however, there is no rule addressing who bears financial responsibility for converting documents to accessible formats.  The Board suggests that the attorney and client reach an agreement about how digital files will be provided to the client if requested in the future and who will bear the cost.  In the absence of agreement, an attorney should comply with a former client’s request to convert digital files to paper.

An attorney has no duty to maintain a client file indefinitely.  A records retention policy can obviate the need to maintain a client file for a significant length of time after representation concludes.  The Rules prescribe no minimum time that the files must be retained.  Where the file is not returned to the client at the termination of representation, the Board prescribes that the attorney maintain the file for sufficient time to protect the client’s interests.  For example, until the applicable statutory limitations period has expired or the files no longer serve a useful purpose to the former client.

To avoid maintaining the client file over time, the Board advocates attorneys to develop a records retention policy and office procedures for delivery of the file to the client once the representation is completed.  The attorney should notify the client of this policy at the outset of representation, preferably in an engagement letter or fee agreement.  Where the attorney’s policy calls for the destruction of the file, the attorney should contact the client to claim the physical file or give advance notice of impending destruction.

Board Opinion 2019-6 mirrors in most respects the Board’s Ohio Ethics Guide Client File Retention it published in 2016.  Importantly, Board Op. 2019-6 makes clear that an attorney has no obligation to maintain a client file.  The Ohio Ethics Guide also states this but notes that other jurisdictions suggest maintaining client files for a duration concurrent with IOLTA requirements (7 years).  Board Op. 2019-6 seems to backtrack from imposing client file retention requirements on Ohio attorneys that are not specifically set forth in the rules.  Rather, the Board emphasizes the importance of a file retention policy and communicating that to the client at the beginning and the end of the representation.




Conflict of Interest Unrelated Matter Current Clients

On February 8, 2019, the Board of Professional Conduct of the Supreme Court of Ohio issued Board Op. 2019-1, opining that it is a violation of Ohio’s Rules of Professional Conduct for an attorney to represent an adverse party to a current client in an unrelated matter without his current client’s informed consent.  Moreover, the attorney may not withdraw representation from the current client to be able to undertake representation of the party adverse to the current client even where the matters are unrelated.  Additionally, a lawyer may not represent an adverse party of a former client in a new matter without the former client’s informed consent.

The matter about which the Board opined involved an attorney representing employees in Worker’s Compensation cases.  Employers then approached the attorney wanting to hire him to represent the companies.  Some of the lawyer’s current and former clients are employees of the employers.

The Board noted that Prof.Cond.R. 1.7(a)(1)-(2) prohibits a lawyer from representing a client that has a direct adverse interest to another current client.  The Board stated that principles of loyalty and independent judgment are fundamental to the lawyer-client relationship.  Accordingly, neither another client’s interests nor the attorney’s own interests can interfere with that loyalty.

According to the opinion, where one client asserts a claim against another in litigation, their interests are directly adverse.  Further, a lawyer may not represent a party in one proceeding against a client the lawyer represents in another proceeding, even where the matters are wholly unrelated.

The Board explained that where a lawyer considers representing a potentially more lucrative or long-term client, the lawyer’s own personal interest in that relationship would impact the lawyer’s ability to carry out duties owed to the current client.  As an example, the opinion asserts the attorney may be hampered in conducting a competent and thorough cross-examination of the employer’s representative due to the desire to maintain the more lucrative employer as a client.  The potential for compromise is present and prohibits such representation.  This presents a material limitation conflict of interest.

The opinion acknowledges that material limitation conflicts are not per se violative of the Ohio Rules of Professional Conduct.  The lawyer, however, must obtain informed consent from each of the affected clients to do so.  Informed consent requires that the clients be “informed of the material risks and reasonably available alternatives to the proposed course of conduct.”  Prof.Cond.R. 1.0(f).  The waiver must also be confirmed in writing.  The best way to do this is through the client’s signature on a waiver of conflict of interest.

Should a client decline to sign such a waiver or decline to give informed consent, the attorney may not withdraw representation of the current client to undertake representation of the prospective client.  The lawyer is obligated to carry a client’s matter to conclusion.  The Board recognized that Prof.Cond. R. 1.16 may permit an attorney to do just this.  However, citing the “hot potato” doctrine, the Board concluded that courts historically have declined to allow attorneys to withdraw from a less favorable representation to proceed with a more lucrative engagement.  Accordingly, the Board adopted the concept that withdrawing representation of one client to undertake representation of another is ethically inappropriate.

Regarding former clients, the Board recognized that Prof.Cond.R. 1.9 prohibits an attorney from representing a client against a former client in a substantially related matter without the former client’s informed consent.  Applying that rule to Worker’s Compensation cases, the Board explained that an attorney taking on representation of the employer whose former clients may still be employed there may face a situation where the former client has a new Worker’s Compensation claim.  The new Worker’s Compensation claim would be the same or substantially related to the attorney’s representation of the former client.  The possibility exists that confidential information may be used against the former client.  The client, therefore, must give informed consent of the representation confirmed in writing.

Where the former client is no longer an employee, there is no substantial relationship unless a new Worker’s Compensation matter would somehow relate to the former employee’s previous claim.  According to the Board, this type of relationship does not require the former client’s informed consent.


Former Judge Burge Law License Suspended

On August 13, 2018, the Supreme Court of Ohio suspended the law license of former Lorain County Common Pleas Court Judge James M. Burge.  Burge was convicted of crimes related to his failure to disclose his interest in office buildings on his financial disclosure forms while sitting on the bench and then assigning paid legal work to attorneys who rented office space from him.

Burge was suspended for one year with six (6) months stayed.  He was also given credit for three (3) months and three (3) weeks that he had served under an interim suspension issued in April 2015 for his convictions for tampering with records and falsification.

The Supreme Court of Ohio deemed the sanction given sufficient since Burge’s misconduct occurred while he was on the bench and he has resigned from the bench.  It believes Burge’s misconduct will not recur.  In Ohio, a judge must have a license to practice law in good standing to maintain his position on the bench.

While a sitting judge, Burge was charged with 12 counts of criminal conduct.  A jury convicted him of three misdemeanor falsification charges and three felony tampering charges.  A visiting judge dismissed the remainder of the charges.  One month later, the felony charges were reduced to misdemeanors.

Burge also made disparaging remarks to convicted criminals appearing before him.  He told one man he “would have paid 50 bucks to give you a beating before you went.”  To another man, he remarked:  “Now if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.”  In a letter written on court stationery, Burge characterized the proposed bill of a former General Assembly representative as “nothing more than the hobgoblin of a small-minded, mouth-breathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”

In a dissenting opinion, Justice Kennedy’s dissent stated that she would have imposed a two-year suspension with one year stayed for such conduct.

Disciplinary Counsel v. Burge, 2019-Ohio-3205.


Unauthorized Practice of Law

Licensed to practice law in Indiana, Virginia and the District of Columbia, non-Ohio licensed attorney Donald Doheny, Jr. was ordered to cease practicing law in Ohio and fined $25,000 for engaging in the unauthorized practice of law.

Suffering from the effects of a serious auto accident in 1993, Doheny, unable to maintain steady work, moved to St. Louis to live with his mother.  When she passed away, Doheny moved to Ohio to live with close friends.

While living there, Butler County informed Doheny’s friends that they violated a lease for a county airport hanger when they placed signage on the side and the roof.  After researching the matter, Doheny met with County officials, which resulted in the County dropping the demand to remove the signs.

Doheny then attended a County Commissioners’ meeting where he requested that the lease regarding the airport hanger be amended so that his friends could obtain a Small Business Loan and build a new hanger.  Doheny provided legal advice regarding building permits and met with government officials about compliance with the permits.  Doheny later recommended that his friends file suit against the County.

Doheny told the FAA that he represented his friends, using Doheny & Doheny law firm letterhead and listed as his business address property that his clients’ owned.  His friends paid him about $65,000 for Doheny’s legal services.

Doheny also charged his friends a fee for preparing a real estate purchase agreement.  He charged another man to prepare a deed to sell real estate.  He represented to Butler County jail officials that he was the family attorney for a man arrested.  He attempted to obtain the man’s release and was paid $2,000 for his efforts.

In March 2017, the Ohio State Bar Association filed a complaint with the Board on the Unauthorized Practice of Law charging Doheny with 11 counts of practicing law without an Ohio license.  On August 21, 2019, the Supreme Court of Ohio ordered Doheny to cease practicing law in Ohio and fined him $25,0000.

Gov.Bar R. VII permits the Supreme Court of Ohio to fine an individual found to have engaged in the unauthorized practice of law $10,000 for each incident.  The Supreme Court of Ohio could have fined Donehy up to $100,000 for the 10 counts for which it found him to be engaged in the unauthorized practice of law.  However, it deemed a $25,000 fine to be sufficient.



Attorney Sanctioned For Practicing During Interim Suspension

On February 23, 2018, the Supreme Court of Ohio suspended Rebecca Jo Austin of Lakewood for failing to answer a Complaint that the Cleveland Metropolitan Bar Association filed against her with the Board of Professional Conduct.  The suspension was an interim default suspension.  This is an immediate suspension from the practice of law for failing to respond to the formal complaint.  When this occurs, an attorney is not permitted to practice law.

On May 4, 2018, the Supreme Court of Ohio found Ms. Austin to be in contempt for failing to comply with its default suspension Order.  On August 22, 2018, Ms. Austin moved for leave to file an answer, which the Supreme Court of Ohio granted.  It then remanded the matter to the Board of Professional Conduct.

On remand, the Cleveland Metropolitan Bar Association amended its complaint to add practicing while under suspension.  After hearing, the Board recommended that Ms. Austin be indefinitely suspended with credit for time served.  The Supreme Court of Ohio ordered an indefinite suspension but declined to give Ms. Austin credit for time served.  An indefinite suspension is a suspension for a minimum of two (2) years.  Prior to being reinstated, however, the attorney must demonstrate the requisite character and fitness that the attorney was required to show when she originally applied for a license to practice law.

Ms. Austin was disciplined for neglecting two matters, failing to return a retainer upon being discharged, failing to appear at court hearings, for practicing law while under suspension, and for misrepresenting to clients and courts about her suspension.

Interestingly, the Cleveland Metropolitan Bar Association opposed Ms. Austin’s disbarment, indicating that it believed that Ms. Austin was likely to establish in the future her ability to be readmitted to the practice of law.

Although it seems axiomatic, the importance of responding to disciplinary investigations and prosecutions is most important. The matter will not go away.  It will just compound the ethics charges and the sanction.


Jailhouse Lawyer’s Pristine Legal Analysis

Lest we attorneys think our legal education is an absolute necessity to perform proper legal analysis, Calvin Duncan, a man with a 10th Grade education, did so so for 23 years while a prisoner in the Louisiana State Penitentiary in Angola.  That was his assigned job and the state paid him $.20 per hour to do it during his incarceration.  Duncan helped his fellow prisoners with their cases in this way.

He became good at it and was able to procure the release of several of his fellow inmates.  He could spot legal issues, new how to frame the argument and was relentless in his pursuit of justice.  Eventually, seasoned lawyers sought his advice.

Although a very tough legal argument, Duncan repeatedly brought to the U.S. Supreme Court’s attention that failure to have a unanimous verdict in a criminal conviction was a violation of an accused’s Constitutional rights.  After decades of raising the issue, the U.S.  Supreme Court has agreed to hear his argument.  The issue presented is:  “Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?”  If he wins the argument, it could save hundreds of Louisiana prisoners from life sentences.  In 2018, Louisiana citizens amended the state Constitution to require unanimity for criminal convictions occurring after 2018.  Says G. Ben Cohen, the attorney appointed to represent the petitioner:  “The lessons that Calvin taught me were not just about the law.” “They were about not giving up.” Liptak, Adam, New York Times, Sidebar, Aug. 5, 2019.

Interestingly, Mr. Duncan was convicted by a unanimous jury, so he could never benefit from winning his legal argument.  Although sentenced to life, the Innocence Project New Orleans procured his release in 2011 as part of a deal where Mr. Duncan pled guilty to a lesser charge in exchange for a sentence of time served.  He has always maintained his innocence. Upon release, he immediately went to the Tulane Campas stating that he wanted to go to school at that university.  Last year, he graduated.


Judges Driving Under The Influence

It has, yet again, been a busy week for judicial disciplinary charges this week.

Portage County Common Pleas Court Judge Becky Doherty may face further disciplinary action as a result of an OVI case brought against her.  On February 2019, Judge Doherty was arrested and charged with driving under the influence of alcohol after she drove a vehicle belonging to an Akron woman off a snowy on-ramp to Interstate 76 eastbound at Route 43 in Brimfield and crashed into a ditch at about 9:15 p.m.  She later pled guilty to the charge, a first-degree misdemeanor.

As a result, on May 20, 2019, the Office of Disciplinary Counsel filed disciplinary charges against Judge Doherty with the Board of Professional Conduct requesting sanctions against her for violations of the Code of Judicial Conduct.  She was charged with failure to act in a manner that promotes public confidence in the judiciary and failure to avoid the appearance of impropriety.  The formal hearing on the matter will occur on October 22, 2019.

Chief Assistant Disciplinary Counsel Joe Caligiuri stated that the sanction on this first offense will likely be a stayed suspension or a public reprimand.

In the meantime, the office of Disciplinary Counsel also filed disciplinary charges against Franklin County Domestic Relations Court Judge Monica Hawkins for her conviction for driving while under the influence of alcohol.  Hawkins was arrested in Pickerington on January 31, 2019, with a blood-alcohol level of .199%, nearly twice the legal limit.  Judge Hawkins informed the arresting officer that she was a judge and said she had not been drinking.  She was later convicted of the charge.  The Office of Disciplinary Counsel charged her with failing to comply with the law and failing to act in a manner that promotes public confidence in the judiciary, violations of the Code of Judicial Conduct.  The charges could result in the suspension of her license to practice law.  A suspension carries a heavy penalty as it means that she would also be suspended from the bench as a requirement for holding judicial office is to be able to practice law in Ohio.