Court News
Aug. 1, 2006
Court Adopts New Conduct Rules for Attorneys
The Supreme Court of Ohio has adopted new professional conduct rules for attorneys that provide greater protection for clients' rights and help ensure the professional delivery of legal services.
The new rules, the Ohio Rules of Professional Conduct, are based on the American Bar Association Model Rules, which are reviewed and updated regularly and serve as the basis for professional ethical codes for lawyers in 46 states. The rules replace the current Code of Professional Responsibility, which the Court adopted in 1970.
The proposed revisions were published for public comment by the Supreme Court Task Force on Rules of Professional Conduct on three occasions in 2004, and a complete set of proposed rules was published for comment by the Supreme Court in November 2005. The task force then reviewed the comments and recommended revisions to the proposed rules to the Court.
The rules are effective Feb. 1, 2007. The six-month delay provides attorneys with enough time to ensure that they are in compliance with the updated practices and procedures.
The rules have been tailored to most effectively govern Ohio attorneys.
One section of the adopted rules establishes standards for communication with clients, addressing such issues as which client communications are confidential, when a communication with a prospective client must be kept confidential, and when a lawyer may reveal confidential information related to representation of a client.
Another section states that it is preferred that required communications regarding fees be made in writing and that all contingent fee agreements must be made in writing and signed by the client. It decrees that details such as how fees will be calculated, how much litigation will cost and what representation will include must all be spelled out to the client, preferably in writing.
A proposed 30-day ban on the solicitation of accident victims by lawyers, published by the Court in January 2006, is not included in the model rules adopted by the American Bar Association, was not recommended by the task force, and is being considered by the Court separately. A decision on the proposed ban will be announced at a later date.
Following are some of the changes to Ohio's lawyer conduct rules effective Feb. 1, 2007:
- Enhanced communication with clients – The new rules require lawyers to communicate with their clients, preferably in writing, regarding the essential elements of the representation, including: nature and scope of the representation; any limits on the scope of the representation, which must be reasonable; and the basis or rate of the fee to be charged and any expenses for which the client will be responsible. In addition, all contingent fee agreements must be in writing. [Rules 1.2 and 1.5] Lawyers also must communicate regularly with their clients regarding the status of matters for which they have been retained. [Rule 1.4] Currently, these communications are not expressly required by rule, but the current rules state that attorneys should aspire to engage in these types of communications, and most do. Any permissible conflict of interest waivers must be in writing, and the client's consent must be informed. [Rules 1.0(f), 1.7, and 1.9]
- More Detailed Record-Keeping – Currently, a lawyer must maintain client funds and property separate from the lawyer's own funds and property. The new rules retain this requirement and impose new record-keeping requirements that specify: the nature and content of the financial records that must be maintained; the length of time these records must be maintained (seven years); and the performance of a monthly reconciliation of the lawyer's records and bank account records. These new record-keeping requirements are consistent with best practices now followed by many Ohio lawyers and law firms. In addition, the new rules contain specific provisions governing the disposition of funds and financial records when law firms are dissolved or merged, or when a lawyer dies or sells his or her law practice. [Rule 1.15]
- Client Confidentiality – Currently, disciplinary rules require a lawyer to preserve client confidences and secrets. The new rules extend this obligation to maintaining the confidentiality of all “information relating to the representation of a client,” including information that constitutes a client confidence or secret. The new rules also give lawyers greater discretion to reveal confidential client information in certain circumstances, including: to prevent reasonably certain death or substantial bodily harm, or to mitigate substantial injury to the financial interest or property of another where the injury has resulted from the client's commission of an illegal or fraudulent act and the client has used the lawyer's services in furtherance of the act. [Rule 1.6]
- Specific Rules Governing a Lawyer's Relationship with Specific Types of Clients – The new rules impose specific obligations on lawyers in their relations with certain types of clients, including: prospective clients [Rule 1.18], former clients [Rule 1.9], organizational clients [Rule 1.13], and clients with diminished capacity. [Rule 1.14] Currently, the disciplinary rules state some of these obligations in terms of encouraging certain behavior and otherwise address them in general rules governing the client-lawyer relationship.
- Multi-Jurisdictional Practice – Currently, Ohio law prevents a person from providing legal services in Ohio unless that person is licensed to practice law in this state. There are few express exceptions to this rule. The new rules continue the general prohibition against unlicensed practice, but recognize that an out-of-state lawyer may perform certain, limited legal services in Ohio on behalf of that lawyer's clients. For example, an out-of-state lawyer may participate in arbitration or engage in contractual negotiations in Ohio without engaging in the unauthorized practice of law. However, an out-of-state lawyer may not establish an office in Ohio, represent that he or she is licensed to practice in Ohio, or participate in a court proceeding without the permission of the judge before whom the proceeding is pending. [Rule 5.5]
- Multi-Disciplinary Practice – The new rules recognize that lawyers often provide a range of professional services to clients that are not legal services, including real estate title insurance, financial planning, accounting and lobbying. The rules provide that a lawyer may be subject to discipline when providing these services as part of the legal representation of a client and state that a lawyer may not condition the provision of legal services on a client's agreement to have law-related services provided by a business owned or controlled by the lawyer. [Rule 5.7]
To view the full version of the Ohio Rules of Professional Conduct, visit: http://www.supremecourtofohio.gov/Atty-Svcs/ProfConduct/default.asp
Contact:
Chris Davey at 614.387.9250 or Rick Dove at 614.387.9520.
