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.


Judicial Disqualification

R.J. Reynolds and Phillip Morris were able to get the trial judge in a federal lawsuit disqualified because, prior to taking the bench, he represented plaintiffs in tobacco litigation against the tobacco companies.  The First District Court of Appeals removed the trial judge in R.J. Reynolds Tobacco Co., et al. v. Estate of Gil Cuddihee, Deceased, 1st District Court App. Case No. 1D19-0385 upon the tobacco companies’ petition for a writ of prohibition.  The judge formerly represented plaintiffs in 19 separate cases, five of which went to trial.  In one case, a jury verdict of $17 million was awarded, $11 million of which was in punitive damages.  Viewed collectively, ruled the 1st District, the facts were legally sufficient to create a well-founded fear that the tobacco companies would not receive a fair trial.  Accordingly, it granted the tobacco companies’ petition and issued the writ.


Judge Reprimanded For Presiding Over Former Client’s Case

Mahoning County Probate Judge Robert Rusu, Jr. was publicly reprimanded for presiding over several cases in which he formerly represented a party.  Appointed to the bench in July, 2014, Rusu was elected into office later that year.  Upon taking judicial office, Judge Rusu neglected to inform some of his clients that he would no longer be representing them in the legal matters.

In one matter, Mr. Rusu represented an executor of an estate.  When he took judicial office, he informed his client he could no longer represent her but referred her to his law office associate who assumed her representation.  Judge Rusu ultimately adopted a Magistrate’s Decision regarding the matter.  He indicated that he did not believe his presiding over the matter would be a problem because all parties were represented by counsel, they resolved the matter and they never formally appeared before him.  According to the disciplinary case, the Office of Disciplinary Counsel identified approximately 170 cases in which Mr. Rusu represented a client and later took some action in their case while a Judge in Probate Court.  Approximately 120 of those cases involved a deputy clerk issuing form letters using a stamp to place the Judge’s signature on the letter.

Additionally, the disciplinary complaint alleged that Judge Rusu failed to notify many of his clients with dormant cases that he had been appointed to the bench, thereby denying them the opportunity to be advised to obtain replacement counsel or to request the return of their files.

Because there was no evidence that Mr. Rusu’s former clients were harmed or that their cases resulted in anything less than evenhanded justice, Judge Rusu was given a public reprimand for this misconduct.


Conflicts Abound When AG and Justice Are Father And Son

The ABA/BNA Lawyers’ Manual on Professional Conduct, reported that an ethics complaint is currently pending against Ohio Supreme Court Justice Patrick DeWine for failing to recuse himself on all cases in which the Ohio Attorney General’s office is involved.  Ohio Attorney General Michael DeWine is Justice DeWine’s father.

Prior to becoming Justice in 2017, Patrick DeWine served on both the Hamilton County Common Pleas Court and the 1st District Court of Appeals.  Justice DeWine has heard many cases in which the AG’s office has represented a party.  As Supreme Court Justice, he has heard 4 cases in which the Attorney General is named as a party.  He has never, however, remained on a case in which the Attorney General has personally appeared before him.

While on the Common Pleas Court in 2010, then Judge DeWine sought an ethics opinion from the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (now the Board of Professional Conduct) as to whether he could preside over cases in which the AG’s office was representing a party.  Although the Board never issued a written opinion, Justice DeWine states that its Secretary, Jonathan Marshall, orally told him that he must recuse only where his father personally appears before him.

In 2016, as a Court of Appeals judge, Justice DeWine again sought an ethics opinion as to when he must recuse himself when the AG’s Office is either a party or is representing a party.  This time he sought the opinion from private attorney Michael Close.  Mr. Close, agreeing with Mr. Marshall, opined that the Judge need only recuse when AG DeWine personally appears in the case.

In 2016, the Ohio Democratic Party sought its own ethics opinion from former Disciplinary Counsel Jonathan Coughlan, also a former member of the task force that drafted the current Code of Judicial Conduct.  Mr. Coughlan opined that Justice DeWine should recuse himself from all cases in which the AG’s office appears as counsel of record or files an Amicus brief.

In response, Justice DeWine again sought Mr. Close’s opinion.  Mr. Close reiterated that Justice DeWine need recuse only when his father personally appears before him.

Shortly after being sworn in as Justice, two separate litigants requested that Justice DeWine recuse himself from their cases because of the AG office’s involvement.  Justice DeWine declined.

Thereafter, Ohio’s Office of Disciplinary Counsel received grievances against Justice DeWine for his failure to recuse himself from the cases.  Pursuant to the Supreme Court Rules for the Government of the Judiciary, the matter was referred to the Chief Judge of the Court of Appeals, who appointed a three-member panel to review grievances.  All three judges found that further investigation of the grievances was warranted.

Pursuant to Rule, the Chief Judge of the Court of Appeals appointed Bradley N. Frick as Special Disciplinary Counsel to investigate and/or prosecute the ethics matters against Justice DeWine. On February 14, 2018, Mr. Frick filed an Amended Complaint against him alleging violations of several Canons of the Code of Judicial Conduct.

The Amended Complaint alleged that Justice DeWine violated Canons 1, 2 and 4 of the Code of Judicial Conduct when he failed to recuse himself on cases in which the AG’s office was a party or represented a party.  He also violated the Canons when he appeared with his father in photos on his father’s gubernatorial campaign thereby conveying the impression that AG DeWine could influence Justice DeWine. It states that concluding a father-son relationship has no impact on public perception of the judiciary ignores basic human nature.

The Amended Complaint further alleges that Justice DeWine violated Canons 1, 2 and 3 when he asked Hamilton County Prosecutor Joe Deters to find an internship position in the County Prosecutor’s office for his son, a freshman at Miami University.  Prosecutor Deters did so even though Justice DeWine’s son was not a law student.

The Amended Complaint alleges that Justice DeWine failed to promote the independence, integrity, and impartiality of the judiciary, engaged in the appearance of impropriety, engaged in prohibited campaign activity, and employed the authority of his office to secure authorization of a public contract for a family member.

The parties filed motions for summary judgment.  The hearing panel heard oral arguments in September 2018 and will rule on the motions in the near future.

Interestingly, the Supreme Court of Ohio recently denied a defendant’s Motion for Reconsideration due to Justice DeWine’s failure to recuse in State ex rel Beasley, 2018-Ohio-493.  In a concurring opinion, Justice Fischer wrote that the defendant waived his argument when he failed to request such recusal.  Citing a long line of cases in which chief justices have allowed judges to remain on cases notwithstanding familial relationships with government employees whose offices appear before them, Justice Fischer opined that defendant’s argument was without merit.

Whether Justice Fischer’s concurrence is a preview of precedent to be set in Justice DeWine’s ethics case remains to be seen.

At the very least, Justice DeWine’s ethics case points out the inherent difficulty in navigating conflicts of interest in situations where two public officials appear before one another.  Even the experts disagree.  Both sides’ arguments are plausible.  The state Attorney General’s office is involved in so many cases, it may not be feasible to require recusal where the AG is not actually appearing before the court.  On the other hand, a party could reasonably conclude that impartiality cannot occur where a Justice must rule upon a case in which his father’s office is a party or is representing a party.

The Attorney General is Ohio’s top cop.  In this situation, reasoning that “[s]alaried government attorneys simply ‘ “do[ ] not have the financial interest in the success of the departmental representation that is inherent in private practice” seems not to apply.  State ex rel Beasley, 2018-Ohio-493, par. 7.  Although it may not be financial, the AG certainly has an interest in the success of his office.  And that interest is every bit as important to him as is a private practitioner’s financial interest in his business.

Certainly, Justice DeWine knows that his decisions will impact the success of Attorney General DeWine’s office.  And, perhaps, the Attorney General’s re-election campaign.  Or in this case, his gubernatorial campaign.  Of course, Justice DeWine will want his father to do well in public office.  Such considerations simply cannot be ignored.  And citations to situations where the public employee’s position is of less consequence just do not seem to correlate.

Notwithstanding the long precedent that jurists are presumed to be impartial and public officials are presumed to have less interest in the outcome of a public case, it certainly seems to raise an eyebrow to allow a Justice of a state’s top court to preside over cases in which his father, the state’s top cop, stands to gain, even if indirectly.

No doubt this very serious and thorny issue must be addressed and decided.  Whether it should lead to ethics sanctions, possibly impacting the Justice’s law license, however, is another matter.  Given the high stakes and the fact that the citizens of Ohio elected both officials, it seems that, at the very least, some semblance of citizen input is called for.


Terminating Representation:  Taking the Easy Way Out

So you have taken on a client, believing the representation would be a good one, and the relationship with the client sours.  What do you do?  Can you just stop representing your client?  Maybe, but you must protect the client’s interests.  You will also want to protect your interests in getting paid.

There are many reasons to terminate representation.

At some point, you may decide that you no longer want to represent this client.  Can you withdraw from representation?  The short answer is yes.

Rule 1.16 gives many instances where terminating representation is appropriate.  In some instances, withdrawal is required.  In others, it is permitted.

You must withdraw if your representation violates Ohio law.  This includes the ethics rules.  Likewise, mandatory withdrawal occurs where you are no longer mentally or physically to continue the representation.  Finally, if your client fires you, you must withdraw.

You are allowed to withdraw only if it will not have a materially adverse effect on the client’s interests.  Then, you may withdraw if:

  1. the client is engaging in fraudulent or illegal conduct involving your legal services;
  2. the client uses your services to perpetrate a crime;
  3. the client’s behavior is repugnant to you or you have a fundamental disagreement with it;
  4. with advanced notice, where the client fails to fulfill an obligation regarding your services;
  5. the representation is financially burdensome to you;
  6. with the client’s permission;
  7. you sell your law practice;
  8. for other good cause.

Here is what is important.  The client can terminate the relationship at any time.  Exceptions to this rule are court appointments or where your client has diminished capacity.  Then, court assistance will likely be necessary.

If you decide to fire your client, you can so long as the client will not be materially adversely affected. When does that occur?  It depends.  Withdrawing on the eve of trial may be such an example.  The client is adversely affected where the judge will not grant a continuance for replacement counsel to get on board and get up to speed.

If withdrawal requires you to seek the court’s approval, you must do so.  It is not enough simply to inform your client.  Your representation continues until the court allows withdrawal.  Importantly, you must protect your client’s interests until leave is given.  If leave is denied, you must continue with the representation.

You have a duty to return to the client all original materials in your possession.  Moreover, the client is entitled to the file.  So what must you return?  Pleadings, correspondence, deposition transcripts, exhibits, physical evidence, expert reports and anything else necessary to the client’s representation.  Conspicuously absent are the attorney notes.  That is your work product.  However, Ohio Board Op. 2010-2 says that whether you must relinquish them depends on the content of the note.  An attorney’s notes to himself about passing thoughts, ideas or impressions do not have to be included.  However, internal office memoranda, personnel assignments, conflict of interest checks are probably documents that are necessary to the representation of the client and must be turned over.

How do you protect your ability to get paid?

If a client refuses to pay for your services, you can sue him.  Be aware that a counterclaim in malpractice may result. There is also the attorney retaining lien.  While a substantive right, it may result in a disciplinary violation nevertheless.  If withholding the file will harm your client in litigation, it is better to give it up. If this option is exercised, send your client a letter of notification. Also, let the replacement attorney know of your retaining lien.  In that way, you protect your interests.  Ohio Rule 1.15(e) requires the lawyer who receives funds on behalf of a client to retain the disputed portion of those funds until resolution of the matter.

Ongoing Duties to Former Clients

Upon withdrawal, some duties to the client remain.  Ohio Rule 1.6, the attorney-client privilege, is one.  Indeed, that duty remains even after the client’s death.  In Ohio, the privilege protects any information relating to the representation.  There are, of course, exceptions.  The crime-fraud exception is one.  In Ohio, that is anything governed by Rule 3.3 involving truthfulness to the courts, or Rule 4.1 involving truthfulness in statements to others.  Rule 4.1 encompasses not only materially false statements of fact or law but withholding material information.

Another ongoing duty is the Rule 1.9 to avoid conflicts of interest.  You cannot represent another client against your former client on a substantially related matter if the two clients’ interests are adverse to one another.  And this conflict is imputed to members of your firm.  Material adversity usually involves information you have as a result of representing your former client that is subject to the attorney-client privilege or the work product doctrine.  Rule 1.9 also prohibits you from using information that you obtained through representation against your former client.

What do you do if you cannot reach the client?

Withdrawing from representation requires notifying the client.  From time to time it happens that you cannot reach the client. Doing so in writing by some method involving a return receipt, such as certified mail, FedEx, or UPS is best. If the mail is returned unclaimed, you have proof that you tried and failed to reach the client.  The same is true if regular mail is returned.  If certified mail is unsuccessful, you may want to try regular mail.  If it is not returned, the client’s receipt of it is presumed. You can also send an email. If your email service provider offers it, you can request a delivery and read receipt to show your client received it.  If not, you might try getting software such as Banana Tag that does offer delivery and read receipts for email. The idea is to make all reasonable attempts to let your client know that you are no longer representing him. If the client cannot be reached by the methods she gave you as contact information, there really is little more you can do.


The bottom line is, if you withdraw, make sure your client is not adversely affected.  Protect the client’s interests until withdrawal is complete.  Preserve your right to payment through notification to the client and to replacement counsel.  Keep all privileged material secret.  Avoid conflicts of interest.  An ounce of prevention in these small matters may save you a pound of cure.


Pill Mill Defense Attorney’s Conflict Is Not Waivable

On March 1, 2018, attorney Wesley Page of Flaherty, Sensabaugh Bonasso, PLLC (“Flaherty”) agreed to defend William Earley, D.O. on indictments of violations of the Controlled Substances Act as employees and/or operators of the HOPE Clinic in West Virginia.  Dr. Early and 12 other physicians were indicted for seeing patients on a cash-only basis and prescribing oxycodone and other prescription pain medications while refusing to accept insurance.

On May 31, 2018, attorney Salem Smith of Flaherty, Sensabaugh Bonasso, PLLC was retained to represent Dr. Chad Turner in a potential medical malpractice suit contemplated to be filed against him by the estate of a former Hope Clinic patient.  As a former Hope Clinic physician, Dr. Turner was scheduled to testify against Dr. Early in the criminal proceeding.  According to the U.S. Attorney, Dr. Turner’s testimony was expected to directly inculpate Dr. Early.

When the U.S. Attorney brought this conflict to both Messrs. Page’s and Smith’s attention, they both said they performed the requisite conflicts checks and did not believe that a conflict existed.  They indicated that Dr. Turner signed a conflict waiver and Mr. Early waived the conflict orally.

Believing there was a conflict that could affect the integrity of the prosecution, the U.S. Attorney filed a Notice with the U.S. District Court for the Southern District of West Virginia, Beckley Division.  At hearings on the issue, the U.S. Attorney said the Flaherty firm’s dual representation created an impermissible conflict under Rule 1.7 of the West Virginia Rules of Professional Conduct.  Comment [6] prohibits an attorney from cross-examining a current client who appears as a witness in a lawsuit where the testimony is damaging to another current client.  Counsel for Flaherty countered that Flaherty’s representation of Dr. Turner ended by June 28, with no lawsuit being filed against him.  The criminal trial against Dr. Early was scheduled for August.

Because Dr. Turner is a former client, Flaherty’s counsel analyzed the conflict under Rule 1.9, which permits the cross-examination of a former client.  The U.S. Attorney countered that the conflict is analyzed at the time the conflict arises, not at the time a motion to disqualify is filed.  The U.S. Attorney indicated that Flaherty has the burden to show that the physicians waived the conflict with informed consent so as to defeat a motion to disqualify.  Flaherty countered that, as the filer of the motion, the U.S. Attorney has the burden to prove disqualification should occur.  Moreover, civil cases on disqualification cannot stand in a criminal case where a defendant has a 6th Amendment right to counsel of his choice.

The Court ruled that when the Flaherty firm began representing Dr. Turner on May 31, 2018, the firm had a conflict with its current client.  Flaherty knew as early as March 2018 that Dr. Turner was to be a witness on behalf of the United States and would give adverse testimony against Dr. Early.  The Court ruled that Rule 1.9 was inapplicable.  Rule 1.7 required not only that Dr. Turner give informed consent in writing, but that Dr. Early, who was a Flaherty client first, also give informed consent in writing.  There was no evidence that this had occurred.

There was a significant risk, the Court ruled, that Dr. Early’s representation would be materially limited by the lawyer’s responsibility to another current client. Because Mr. Page would have to cross-examine Dr. Turner, which would require Mr. Page to attempt to impeach Dr. Turner’s credibility at trial to protect Dr. Early’s position, the conflict was not waivable.

The Court ruled that the presumption of prejudice to the client had not been overcome.  It noted the Court had the duty to ensure that criminal trials are conducted within the ethical standards of the profession.  And the United States had the duty to ensure the integrity of the prosecution.  Since neither of those could occur if Flaherty remained as counsel, it disqualified the firm from further representing Dr. Early.


Clark County Clerk of Courts Threatened With Contempt!

Melissa Tuttle was elected as the Clark County Clerk of Courts in November 2016.  Her election unseated long-time Clerk, Ron Vincent.  Since taking office, Tuttle has made several changes, including transitioning the Clerk’s office to a new case management system, closing a Clerk’s Annex in another building, and making staffing changes.

Nevertheless, three judges complained of repeated delays in the filing of court documents and requested better access to court files.  In January, Judge Cappers wrote a letter to Tuttle annunciating the judge’s displeasure at the time delay.  In early June, Judges Rastatter, O’Neill and Capper jointly filed three separate orders indicating that, unless the issue is resolved, legal action could ensue, including a contempt filing.

Interestingly, the County Prosecutor, Andy Wilson, is statutory counsel for both the Judges and the Clerk’s office.  Mr. Wilson indicated his office recused itself to avoid a potential conflict of interest.  The Court appointed a special prosecutor to represent Tuttle and the judges will be represented by separate counsel.

Tuttle said she believes the issues the judges raised have been resolved.  She admits some delays have occurred, but says her predecessor, Ron Vincent, faced similar criticism.  Tuttle indicated the staff at the clerk’s office did not appreciate the value of timeliness.  She says she now has the right team in place to resolve these issues.

Mr. Vincent stated in his 40 years of service as Clerk, he was never called before the court for such issues.  He says the only problems with the office are those Tuttle created.  Clark County Bar Association President, James Heath, says he noticed no time delays between when documents were time-stamped and when they were docketed when Vincent was Clerk.  He states the Clark County Bar Association will support any action the judges deem necessary.

Chief Deputy Clerk of Courts, Andrea Strelsky, states that the Clerk’s office is in a better place than it has been in her 15 years of service.  The current Clerk, says Strelsky, has a more accountable staff.  New filings and entries are occurring the same day or the next day.  She says the office is more organized and professional.

The parties are scheduled to meet to discuss and, hopefully, resolve issues, although it is unclear when this meeting will take place.