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RECOMMENDATIONS OF THE COUNCIL OF DELEGATES
OF THE OHIO STATE BAR ASSOCIATION
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The Council of Delegates recommends that the following Rules and Comments be
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approved without revision as proposed by the Supreme Court Task Force on Rules of
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Professional Conduct:
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Rule
Description
1.1
Competence
1.3
Diligence
1.4
Communication
1.11
Special Conflicts of Interest for Former and Current
Government Officers and Employees
1.12
Former Judge, Arbitrator, Mediator or Other Third-Party
Neutral
1.14
Client with Diminished Capacity
1.16
Terminating Representation
1.17
Sale of Law Practice
2.3
Evaluation for Use by Third Persons
2.4
Lawyers Serving as Arbitrator, Mediator, or Third-Party
Neutral
3.1
Meritorious Claims and Contentions
3.4
Fairness to Opposing Parties and Counsel
3.5
Impartiality and Decorum of the Tribunal
3.6
Trial Publicity
3.8
Special Responsibilities of a Prosecutor
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3.9
Advocate in Nonadjudicative Proceedings
4.2
Communication with Person Represented by Counsel
4.3
Dealing with Unrepresented Person
5.1
Responsibilities of Partners, Manager, and Supervisory
Lawyers
5.2
Responsibilities of a Subordinate Lawyer
5.3
Responsibilities Regarding Nonlawyer Assistants
5.4
Professional Independence of a Lawyer
5.5
Practice of Law; Multijurisdictional Practice of Law
5.6
Restrictions on Right to Practice
5.7
Responsibilities Regarding Law-related Services
6.5
Nonprofit and Court-Annexed Limited Legal Service
Programs
7.3
Direct Contact with Prospective Clients
7.6
Political Contributions to Obtain Government Legal
Engagements or Appointments by Judges [Not
Recommended; See Reporter’s Note]
8.5
Disciplinary Authority; Choice of Law
The Council of Delegates recommends adoption of the following Rules and comments
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with the changes noted:
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Rule 1.2
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(1)
In subsection (c), delete lines 17-22 and insert the following:
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“(c) A lawyer may limit the scope of representation if the limitation is
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reasonable under the circumstances and the client gives informed consent.”
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(2)
In the comments, delete lines 89-115 and insert, “The scope of services to be
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provided by a lawyer may be limited by agreement with the client or by the
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terms under which the lawyer’s services are made available to the client.
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When a lawyer has been retained by an insurer to represent an insured, for
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example, the representation may be limited to matters related to the
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insurance coverage. A limited representation may be appropriate because
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the client has limited objectives for the representation. In addition, the terms
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upon which representation is undertaken may exclude specific means that
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might otherwise be used to accomplish the client’s objectives. Such
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limitations may exclude actions that the client thinks are too costly or that the
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lawyer regards as repugnant or imprudent.
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Although this Rule affords the lawyer and client substantial latitude to
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limit the representation, the limitation must be reasonable under the
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circumstances. If, for example, a client’s objective is limited to securing
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general information about the law the client needs in order to handle a
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common and typically uncomplicated legal problem, the lawyer and client may
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agree that the lawyer’s services will be limited to a brief telephone
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consultation. Such a limitation, however, would not be reasonable if the time
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allotted was not sufficient to yield advice upon which the client could rely.
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Although an agreement for a limited representation does not exempt a lawyer
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from the duty to provide competent representation, the limitation is a factor to
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be considered when determining the legal knowledge, skill, thoroughness and
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preparation reasonably necessary for the representation. See Rule 1.1.
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All agreements concerning a lawyer’s representation of a client must accord
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with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1,
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1.8 and 5.6.”
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Rule 1.5
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(1)
Delete subsection (b) (lines 18-24) and insert the following: “Either before a
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lawyer undertakes a representation or within a reasonable time after
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commencing a representation, a lawyer shall communicate to the client both
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the scope of the representation the lawyer undertakes and the basis or rate of
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the fee and expenses for which the client will be responsible for the lawyer’s
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services. Likewise, a lawyer shall promptly communicate to the client any
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changes in the basis or rate of the fee or expenses.”
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(2)
the word “A”; and delete line 95 in its entirety.
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In Comment [2], delete lines 84 through line 92; delete line 94 beginning with
Rule 1.6
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At line 13 on Page A-43 delete “illegal” and insert “criminal”.
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Add comment [7]. “In a matter involving a fee dispute among lawyers arising under
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Rule 1.5(e), or otherwise, where the client has no substantial financial interest in the
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resolution of the matter, client confidences and secrets may only be disclosed during
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a mediation or arbitration provided pursuant to Rule 1.5(f). Concerning fees, client
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confidences or secrets may be disclosed if the controversy over the amount or
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liability for the fee is between the lawyer and the client.”
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Rule 1.7
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In line 2 of Rule 1.7 at the beginning of the sentence, insert the words, “Unless
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otherwise required by law.”
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Delete lines 10 through 12 and substitute the following therefor:
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“(b) Notwithstanding the existence of a concurrent conflict of interest under division
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(a) of this rule, a lawyer may represent a client if all of the following apply:”
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In Comment [18] insert the following at line 195:
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“A lawyer representing a fiduciary does not, solely by that representation, engage in
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multiple representation of other parties to whom the fiduciary owes fiduciary duties.”
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Rule 1.8
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In line 4, delete the words, “enter into a business transaction with a client or”.
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In line 73, after the word “disclose”, insert the words “discoverable and non-
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confidential”.
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In line 76, delete the words, “case or”.
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Rule 1.9
In lines 4 and 7 “substantially” should not be italicized since it is not a defined term.
Rule 1.10
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Delete lines 17 through 20.
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Add Comment [9] at line 141:
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“[9] ‘Substantially related’ as used in Rule 1.10(b)(1) and (d) is defined in Comment
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[3] of Rule 1.9 (see Rule 1.0, Comment [11]).”
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Rule 1.13
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Delete the words, “or reasonably should know” in line 7.
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Delete lines 16 and 17 and substitute the following:
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“(c) Except as provided in paragraph (d), if
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“(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest
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authority that can act on behalf of the organization insists upon or fails to address
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in a timely and appropriate manner an action, or a refusal to act, that is clearly a
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violation of law, and
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“(2) the lawyer reasonably believes that the violation is reasonably certain to
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result in substantial injury to the organization, then the lawyer may reveal
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information relating to the representation whether or not Rule 1.6 permits such
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disclosure, but only if and to the extent the lawyer reasonably believes necessary
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to prevent substantial injury to the organization.
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“(d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s
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representation of an organization to investigate an alleged violation of law, or to
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defend the organization or an officer, employee or other constituent associated
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with the organization against a claim arising out of an alleged violation of law.
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(e) A lawyer who reasonably believes that he or she has been discharged
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because of the lawyer’s action taken pursuant to paragraph (b) or (c), or who
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withdraws under circumstances that require or permit the lawyer to take action
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under either of those paragraphs, shall proceed as the lawyer reasonably
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believes necessary to assure that the organization’s highest authority is informed
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of the lawyer’s discharge or withdrawal.”
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Rule 1.15
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In line 4, delete the words, “separate interest bearing” and insert the word “trust”.
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In line 9, delete the word “seven” and insert the word “three”.
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Delete lines 23 through 31.
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Rule 1.18
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Delete everything after “matter” in line 11 through line 25.
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Add Comment [10] at line 84:
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“[10] ‘Substantially related’ as used in Rule 1.18(c) is defined in Comment [3] of
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Rule 1.9. (See Rule 1.0, Comment [11]).”
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Rule 2.1
Delete the second sentence, beginning in line 3 and ending in line 5.
Rule 3.3
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Delete lines 18 through 21 and insert the words, “The duties stated in Divisions
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(a) and (b) of this rule continue to the conclusion of the proceeding.”
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Rule 3.7
Insert “(b)” in line 5 before “Except”.
Rule 4.1
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Delete lines 5 and 6 and insert the words “(b) fail to disclose a material fact to a
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third person when disclosure is necessary to avoid assisting a criminal or
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fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”
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Rule 4.4
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In Comment [2], delete lines 20, beginning with the word “Generally”, through line
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35, ending with the word “request”.
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Rule 6.2
In line 2, delete the word “tribunal” and insert the word “court”.
Rule 7.1
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In line 3, delete the comma and the word “non-verifiable” and insert the word “or”
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between the words “false” and “misleading”.
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Rule 7.2
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At the end of line 5, insert “A lawyer shall not seek employment in connection
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with matters in which the lawyer or law firm does not intend to actively participate
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in the representation, but that the lawyer or law firm intends to refer to other
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counsel, except that this provision shall not apply to organizations listed in Rule
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7.2 (b)(2) and (3) or if the advertisement is in furtherance of the transactions
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described in Rule 1.17.”
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Rule 7.4
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After line 12, insert a new Division: “(d) a lawyer engaged in trademark practice
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before the United States Patent and Trademark Office may use the designation
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‘Trademark’, ‘Trademark Attorney’ or a substantially similar designation.”
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In line 12, delete “(d)” and insert “(e)”.
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In Comment [2], line 30, insert “and (d)” after “(c)”. In line 31, insert “and
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Trademark” after “admiralty”. In line 31, delete “maritime” and in line 32, delete
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“commerce and”.
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Rule 7.5
In line 4, delete “firm name”.
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In Comment [1], at line 30, after “nonlawyer”, insert, “A lawyer or law firm may
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also be designated by a distinctive website address or comparable professional
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designation.”
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In Comment [4], in line 44, delete “Practitioners” and insert, “lawyers”.
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Rule 8.1
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Delete the proposed rule in its entirety and substitute therefor:
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“An applicant for admission to the bar, or a lawyer in connection with a bar
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admission application or in connection with a disciplinary matter, shall not:
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(a) knowingly make a false statement of material fact; or
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(b) fail to disclose a fact necessary to correct a misapprehension known by the
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person to have arisen in the matter, or knowingly fail to respond to a lawful
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demand for information from an admissions or disciplinary authority, except that
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this rule does not require disclosure of information otherwise protected by Rule
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1.6.
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Delete the proposed Comment in its entirety and substitute therefor:
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“[1] The duty imposed by this Rule extends to persons seeking admission to the
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bar as well as to lawyers. Hence, if a person makes a material false statement in
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connection with an application for admission, it may be the basis for subsequent
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disciplinary action if the person is admitted, and in any event may be relevant in a
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subsequent admission application. The duty imposed by this Rule applies to a
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lawyer's own admission or discipline as well as that of others. Thus, it is a
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separate professional offense for a lawyer to knowingly make a
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misrepresentation or omission in connection with a disciplinary investigation of
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the lawyer's own conduct. Paragraph (b) of this Rule also requires correction of
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any prior misstatement in the matter that the applicant or lawyer may have made
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and affirmative clarification of any misunderstanding on the part of the
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admissions or disciplinary authority of which the person involved becomes
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aware.
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[2] This Rule is subject to the provisions of the fifth amendment of the United
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States Constitution and corresponding provisions of state constitutions. A person
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relying on such a provision in response to a question, however, should do so
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openly and not use the right of nondisclosure as a justification for failure to
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comply with this Rule.
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[3] A lawyer representing an applicant for admission to the bar, or representing a
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lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by
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the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in
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some cases, Rule 3.3.”
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Rule 8.2
In line 4, delete “judicial officer” and insert “judge or magistrate”.
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Rule 8.3
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Delete Divisions (a) and (b), lines 2 through 8, and substitute therefor the
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following:
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“(a) A lawyer who possesses unprivileged knowledge that another lawyer has
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committed a violation of the Rules of Professional Conduct that raises a
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substantial question as to that lawyer's honesty, trustworthiness or fitness as a
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lawyer in other respects, shall inform the appropriate professional authority.
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(b) A lawyer who possesses unprivileged knowledge that a judge or magistrate
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has committed a violation of applicable rules of judicial conduct that raises a
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substantial question as to the judge's or magistrate’s fitness for office shall inform
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the appropriate authority.”
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Delete the proposed Comment in its entirety and substitute therefor:
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“[1] Self-regulation of the legal profession requires that members of the
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profession initiate disciplinary investigation when they possess unprivileged
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knowledge of a violation of the Rules of Professional Conduct. Lawyers have a
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similar obligation with respect to judicial misconduct. An apparently isolated
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violation may indicate a pattern of misconduct that only a disciplinary
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investigation can uncover. Reporting a violation is especially important where the
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victim is unlikely to discover the offense.
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[2] [Reserved]
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[3] If a lawyer were obliged to report every violation of the Rules, the failure to
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report any violation would itself be a professional offense. Such a requirement
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existed in many jurisdictions but proved to be unenforceable. This Rule limits the
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reporting obligation to those offenses that a self-regulating profession must
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vigorously endeavor to prevent. A measure of judgment is, therefore, required in
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complying with the provisions of this Rule. The term "substantial" refers to the
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seriousness of the possible offense and not the quantum of evidence of which
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the lawyer is aware. A report should be made to the bar disciplinary agency
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unless some other agency, such as a peer review agency, is more appropriate in
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the circumstances. Similar considerations apply to the reporting of judicial
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misconduct.
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[4] The duty to report professional misconduct does not apply to a lawyer
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retained to represent a lawyer whose professional conduct is in question. Such a
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situation is governed by the Rules applicable to the client-lawyer relationship.
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[5] Information about a lawyer's or judge's misconduct or fitness may be received
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by a lawyer in the course of that lawyer's participation in an approved lawyers or
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judges assistance program. In that circumstance, providing for an exception to
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the reporting requirements of paragraphs (a) and (b) of this Rule encourages
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lawyers and judges to seek treatment through such a program. Conversely,
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without such an exception, lawyers and judges may hesitate to seek assistance
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from these programs, which may then result in additional harm to their
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professional careers and additional injury to the welfare of clients and the public.
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These Rules do not otherwise address the confidentiality of information received
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by a lawyer or judge participating in an approved lawyers’ assistance program;
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such an obligation, however, may be imposed by the rules of the program or
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other law.”
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Rule 8.4
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In line 5, delete the word “illegal” and insert the word “criminal”.
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Delete lines 17 and 18.
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In line 27, delete the word “illegal” and insert the word “criminal”.
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Preamble
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Insert the following as Comment [7] at line 48:
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“[7] Many of a lawyer's professional responsibilities are prescribed in the Ohio
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Rules of Professional Conduct, as well as substantive and procedural law.
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However, a lawyer is also guided by personal conscience and the approbation of
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professional peers. A lawyer should strive to attain the highest level of skill, to
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improve the law and the legal profession and to exemplify the legal profession's
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ideals of public service.”
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Rule 1.0
In Comment [6] delete the reference to Rule 1.2(c) at line 114.
Minority Report
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The Council of Delegates also voted to submit, but not approve, a minority report
on Rules 1.2 and 1.5; that report follows.
Rules 1.2 and 1.5, as proposed by the task force, mandate that a lawyer confirm,
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in writing, both the scope of the representation of the client and the agreement
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concerning the fees and expenses the lawyer will charge the client. The rule mandates
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that the lawyer confirm these matters, in writing, within a reasonable time after
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commencing the representation.
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A minority of the OSBA subcommittee believe the Supreme Court of Ohio should
adopt the rule as proposed by the task force.
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Still other members of the subcommittee, also in the minority, believe the
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Supreme Court of Ohio should increase the amount of fee that triggers the requirement
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in Rule 1.2 as proposed by the task force to confirm, in writing, the scope of
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representation and the agreement concerning the fees and expenses the lawyer will
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charge the client. Those members believe the Supreme Court of Ohio should change
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the amount from $500.00 to a substantially higher amount, such as $2,500.00.
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