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

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.

 

ethics

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.

ethics

Former Juvenile Judge Jailed

In 2014, former Hamilton County Juvenile Judge Tracie Hunter was convicted of a felony for giving her brother, a juvenile court employee, confidential information.  Then Judge Norbert Nadel sentenced Ms. Hunter to 6 months in jail.  Since then, Ms. Hunter has appealed the conviction in both state and federal court.  In May 2019, federal court Judge Timothy Black found that Ms. Hunter had received a fair trial.  He refused to comment on the sentence, which he said was for the state court to decide.

On July 22, 2019, now Judge Dinkelacker ordered Ms. Hunter to begin her 6-month jail sentence.  Chaos erupted in the courthouse as Judge Dinkelacker ordered the deputies to take Ms. Hunter into custody.  Hunter went limp in a deputy’s arms, resulting in her being dragged from the courtroom.  Now retired Judge Nadel stated that Ms. Hunter was convicted by a jury, was unrepentant for her misconduct, and the sentence was a correct one. Hunter supporters claim the conviction was politically motivated due to Ms. Hunter, a Democrat, taking a seat formerly held by a Republican.

On October 21, 2014, Ms. Hunter’s Ohio law license was suspended due to her felony conviction.  A felony suspension is an interim suspension.  Now that all appeals or proceedings have been concluded, Ms. Hunter will undergo disciplinary proceedings to determine the length of her suspension from the practice of law.

ethics

U.S. Supreme Court Justice John Paul Stevens Dies At Age 99

After living a good long life, U.S. Supreme Court Justice John Paul Stevens passed away on July 16, 2019, at age 99.  Formerly a Republican antitrust lawyer, Stevens’s 35 years on the U.S. Supreme Court transformed him into an outspoken leader of the court’s liberal wing. Stevens joins U.S. Supreme Court Justices Oliver Wendell Holmes, Jr. and William O. Douglas as one of the longest sitting U.S. Supreme Court Justices on the U.S. Supreme Court bench. Justice Stevens was appointed to the bench in 1980 by President Gerald R. Ford to replace Justice William O. Douglas.

Among his more well-known opinions was Rasul v. Bush, 542 U.S. 466 (2004). Writing for the majority, Stevens brought within the jurisdiction of the federal courts the fate of hundreds of prisoners captured during the war in Afghanistan and Pakistan and held at Guantanamo Bay.

Justice Stevens wrote the majority opinion in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) disallowing the Bush administration to put some of those detainees on trial by military commission.

In 2010, Justice Stevens retired after the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). There the U.S. Supreme Court held that the federal government could not limit corporations from spending money to influence the outcome of elections.  The majority held that the First Amendment prohibits Congress from passing any law that would fine or jail citizens or associations for engaging in political speech.  This includes, according to the opinion, a speaker speaking on behalf of an association existing in a corporate form. The opinion expanded the rights of corporations to spend money and speak on politics.  This ruling led to the creation of super PACs.

Dissenting, Justice Stevens wrote that the opinion rejected the common-sense notion of the American public that recognized a need to prevent corporations from undermining self government.  Justice Stevens wrote that, in the context of elections to public office, the distinction between an individual and corporate speaker is significant.  While corporations make enormous contributions to American society, they are not actually members of it.  Where the corporation is managed or controlled by nonresidents, its interests may conflict in fundamental ways with the interests of eligible voters.  The opinion was decided on January 21, 2010.  Justice Stevens announced his retirement from the bench on April 9, 2010.

After retiring, Justice Stevens had an active career as an author and public speaker.

 

ethics

Judicial Felon Suspended

On July 1, 2019, the Supreme Court of Ohio suspended the law license of former Mahoning County Common Pleas Court judge Diane Vettori-Caraballo, after a federal judge sentenced her to 30 months in prison.  The prison sentence followed Ms. Vettori-Caraballo’s conviction for stealing from the estate of a deceased client. Ms. Vettori-Caraballo was convicted of mail fraud, structuring bank deposits and making false statements to law enforcement.  The Supreme Court of Ohio suspended her license for an interim period due to her felony conviction pending disciplinary proceedings.

Ms. Vettori-Caraballo was ordered to pay $328,000 in restitution, an amount both her counsel and the prosecutors agreed upon.  The theft occurred from the estate of Ms. Vettori-Caraballo’s former client, Dolores Falgiani.  Ms. Vettori-Caraballo absconded with the money when she found it in cash hidden in Ms. Falgiani’s home after her death in 2016.  Since Ms. Vettori-Caraballo has been a Mahoning County Common Pleas Court judge since her election in 2002, her conduct occurred while she was a sitting judge.

The matter was referred to the Office of Disciplinary Counsel for further investigation says The Vindicator, the Youngstown paper.

 

 

ethics

Pay Co-Counsel All They Are Due

On June 27, 2019, Cuyahoga County lawyer Scott A. Rumizen was suspended from the practice of law for two years with 18 months stayed for failing to pay his co-counsel the entirety of the fees co-counsel was entitled to receive.

The misconduct occurred through a series of cases in which Rumizen and his co-counsel represented clients.  Rumizen had been an independent contractor for a law firm.  When he left the firm to open his own practice, the firm and he agreed that he would take about 100 cases, mostly personal injury cases.  Rumizen later misreported the amounts many of the cases settled for resulting in underpayment to his co-counsel.  The resulting shortage in fees paid to co-counsel amounted to nearly $50,000.

In one case, Rumizen settled a personal injury matter for $170,000 for which he received a $62,000 fee award.  He was to pay co-counsel $15,000.  Rumizen, however, reported the settlement as being $60,000, that he received $15,000 in attorney fees and paid co-counsel $3,750.

Co-counsel discovered the misconduct when he received an anonymous letter informing him of Rumizen’s conduct.  While Rumizen initially denied the conduct, he later admitted underpaying the lawyer.  This happened in a number of cases.

The Board found, and the Supreme Court of Ohio agreed, that Rumizen violated Prof.Cond.R. 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).  It further found that the conduct was so egregious that it adversely reflected on Rumizen’s fitness to practice law in violation of Prof.Cond.R. 8.4(h).

The Supreme Court of Ohio has repeatedly stated that a violation of Prof.Cond.R. 8.4(c) will result in an attorney’s actual suspension from the practice of law for a period of time. Although he requested a stayed suspension, Rumizen was actually suspended for 6 months with the balance of 18 months stayed providing he engages in no further misconduct.

Disciplinary Counsel v. RumizenSlip Opinion No. 2019-Ohio-2518.