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ethics

LAWYER SUSPENDED FOR REFUSING TO PARTICIPATE IN CRIMINAL TRIAL

When indigent defendant Richard Mick fired his public defender and hired Kenneth Richard Bailey as defense counsel, he had no idea it would ultimately lead to his conviction on two counts of gross sexual imposition and two counts of rape resulting in a sentence of life without parole. The sentence was later reversed for Bailey’s ineffective assistance of legal counsel. A new trial resulted in a mistrial and Mick is currently awaiting his third trial on the charges.

How did this Happen?

When the defense’s expert psychologist died, the court denied Bailey’s petitioned for the appointment of a new defense psychologist. It reasoned that the defendant was no longer indigent as he had retained counsel. The court continued the trial to a date 3 days following Bailey’s son’s wedding in Las Vegas. Bailey’s repeated attempts to have the trial moved were denied. The court also denied a requested continuance when the defendant was hospitalized the weekend before trial and the defense had not had time to interview a prosecution witness identified late in the case.

Bailey refused to participate at trial. The court ordered him to participate and he declined on the basis that his client’s constitutional rights were so violated that he could not receive a fair trial.

At Bailey’s disciplinary hearing, he was found to have violated Prof.Cond.R. 3.5(a)(6) (engaging in undignified and discourteous conduct) when, at a bench conference, he responded, “I may but I won’t” to the judge’s instruction, “[Y]ou may move back.” Bailey was also found to have violated Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice) for refusing to participate in the trial. The court found Bailey to be in contempt and sentenced him to the maximum 30 days in jail and a $250 fine permitted under Ohio law for a first time offense.

The Supreme Court of Ohio suspended Bailey’s license for one year with 6 months stayed.

Meanwhile, Bailey’s son, Kenneth Richard Bailey, posted on Facebook:

“While I respect the Judge for his office and his faith, I’m probably the most upset. After witnessing the Judge condescendingly criticize prosecutors, probation officers, defense lawyers, and defendants—all in open court and in a rude manner— I think it’s time for the self-righteousness to stop. The fact it takes the Court years to rule on divorce cases after the trial is completed makes the need to keep the underlying case here moving is [sic] wholly dishonest. The fact the Judge’s treatment of other court employees has caused an unpublished rift in the courthouse, it is self-serving, and it adds nothing to jurisprudence. Someone needs to speak out against this, because it is not okay. Someone must run against him.”

He also responded to a comment that his father “was entitled to make a record, and he was denied that right. Just sad.”

In a later comment, he stated:

“All our Judge accomplished was to make it a very long road to get the continuance we requested, make it cost the taxpayers an immense amount of money and waste a week of 12 jurors[’] lives.”

The younger Bailey later removed the Facebook post and sent an apology letter to the judge.

The Supreme Court of Ohio issued a public reprimand to the younger Bailey for violation of Prof.Cond.R. 8.2(a) (making a false statement about the qualifications and integrity of a judicial officer). It reasoned that his Facebook comments, taken together were “specific remarks  about judicial performance that, taken together, wrongly called into question [the trial judge’s] ability and integrity, . . . .”

The entirety of this opinion is can be obtained at 2020-Ohio-3701.

ethics

REMOTE SESSION BAR EXAM

In a startling announcement, The Supreme Court of Ohio announced yesterday that it will conduct the next bar exam remotely in light of coronavirus concerns for safety. In May, the exam, originally scheduled for the end of July, 2020, was postpone until September. The new announcement postpones the exam yet again for one month, until October 5 and 6, 2020. Historically, the Ohio bar exam is held at the end of July and at the end of February. However, COVID-19 has thrown this year’s exam schedule completely off.

Those with applications pending to take the September exam will automatically be rolled over to take the October exam. For those wishing to opt out of the automatic roll over admission, the deadline to withdraw is September 28, 2020.

There is good news for applicants who withdrew their applications when the bar exam was moved from July to September. While they were prohibited from taking the September bar exam, they will be permitted to resubmit their applications to take the October bar exam remotely.

More good news for those granted Recent Graduate Practicing Pending Admission under the Supreme Court’s May 14, 2020 order. Their temporary authority to practice law will not expire on October 1, 2020 if they opt to transfer to take the February bar exam. Instead, it will continue until February 1, 2021.

For more information, see the Supreme Court of Ohio’s website at http://www.courtnewsohio.gov/happening/2020/barExamPostponement_072220.asp#.Xxmsip5KhaQ

ethics

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.

 

 

ethics

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.

ethics

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.