In January 2024, the First District Court of Appeals held that the same-sex consenting partner of a woman subject to nonspousal artificial insemination should be recognized as a “legal parent” where it has been established that the parties would have been married at the time of the child’s conception but for Ohio’s unconstitutional ban on same-sex marriage.
In re L.E.S., 2024-Ohio-165.
In the case at hand, a same-sex couple was not married at the time their children were born, but they had held a civil commitment ceremony. Marriage between same sex couples was not legal at the time of their commitment ceremony or at the time of the children’s conceptions and subsequent births. No litmus test was established for determining the “but for” question (i.e., whether parties would have been married but for the unconstitutional ban), but found “any number of factors may ultimately be relevant” to determining credibility and whether they would have bene married. The COA also cautioned trial courts to “proceed with caution,” because the court should not impose marriage on a party who would not have mutually assented.
Reps. Nadler and Correa Reintroduce the “Student Borrower Bankruptcy Relief Act”
As the Department of Education’s repayment “on ramp” expired yesterday, House Judiciary Committee Ranking Member Jerrold Nadler (D-N.Y.) and Subcommittee on Administrative Law, Regulatory Reform, and Antitrust Ranking Member Lou Correa reintroduced the “Student Borrower Bankruptcy Relief Act of 2024,” aiming to repeal Section 523(a)(8), which makes private and federal student loans nondischargeable, allowing these loans to be treated like nearly all other forms of consumer debt. The legislation also proposes to maintain existing bankruptcy means-testing, ensuring that only those who are already eligible for bankruptcy can access this relief. This also ensures that the fresh start provided by the legislation is available only to those demonstrably in need, without disturbing bankruptcy eligibility criteria beyond current standards. The legislation has been introduced in previous sessions of Congress, but was not voted into law.
Effective April 2024, there is now a statute that prohibits the Court from limiting parenting time or parental rights on the basis that a parent fails to recognize a child as transgender. If the parent refers to his or her transgender child by their biological sex or refuses counseling, treatment, or gender-affirming care, the Court is not permitted to utilize this as a basis for determining decision-making or parenting time.
BOARD OPINION 2024-04 [Issued June 7, 2024]
Fee Mediation or Arbitration Between Departed Lawyer and Former Law Firm
SYLLABUS:The mandatory fee mediation or arbitration for lawyer fee disputes set forth in Prof.Cond.R. 1.5(f) applies only to fee disputes arising between lawyers who are not in the same firm at the outset of the representation of a client and who enter into a fee agreement to divide fees pursuant to Prof.Cond.R. 1.5(e). Fee disputes between a lawyer who has departed the firm and the lawyer’s former firm are not governed by the mandatory fee arbitration or mediation process in Prof.Cond.R. 1.5(f).
CLICK HERE for the Full Opinion
In Zinsmeister v Gillen-Zinsmeister, 2024-Ohio-938, the 10th District Court of Appeals held that an order to sell the marital residence during the pendency of the divorce is a final appealable order, even if the divorce is not finalized yet. Because the owners would be unable to regain possession of the property if it was sold prior to appellate review, it affects a substantial right. In Zinsmeister, only the Husband continued to reside in the home. Further, due to unemployment, he was withdrawing large amounts of money from his retirement to satisfy the mortgage. The Judge found that Husband failed to present evidence demonstrating he could maintain the residence or buy out Wife’s share of the equity, therefore she ordered the house sold and the proceeds held in escrow. The Appellate Court agreed that was an equitable result and upheld her decision.
BOARD OPINION 2024-03 [Issued April 5, 2024]
Propriety of Fee Agreement Permitting Conversion from an Hourly Rate to a Contingent Fee
SYLLABUS: It is improper for a lawyer to enter into a fee agreement where the client agrees to pay an hourly rate until settlement or collection of judgment at which time the lawyer may choose between charging the hourly fee or receiving a total fee equal to a percentage of the settlement or judgment depending upon whichever results in the larger fee to the lawyer.
There’s nothing new about this Board Opinion IMO, it largely reiterates under the current ORPC the same conclusion the Board reached long ago under the former Code.
CLICK HERE for the Full Opinion
BOARD OPINION 2023-12 [Issued December 8, 2023]
Charging Lien in a Contingent Fee Agreement Based on Highest Settlement Offer
SYLLABUS: A lawyer may not offer a contingent fee agreement that requires the client to give the lawyer a charging lien for a percentage of the highest settlement offer made prior to termination of the client-lawyer relationship.
CLICK HERE for the Full Opinion
BOARD OPINION 2023-13 [Issued December 8, 2023]
Settlement Agreement Prohibiting a Lawyer’s Disclosure of Information Contained in a Public Record
SYLLABUS: A settlement agreement that prohibits a lawyer’s disclosure of a publicly accessible government record or the information contained therein is an impermissible restriction on the lawyer’s right to practice. A lawyer may not participate in either the offer or acceptance of a settlement agreement that includes a prohibition on a lawyer’s disclosure of the same. However, due to the complexity of exemptions contained in state or federal law, not all requests to prohibit disclosure will be a violation of Prof.Cond.R. 5.6(b). A lawyer is not required to abide by a client’s decision to settle a matter if the settlement is conditioned on a restriction to practice and must withdraw from the representation. The Board recommends that the holding in this opinion be applied prospectively.
CLICK HERE for the Full Opinion
Sixth Circuit Dismisses PFAS Class Action
Hardwick v. 3M Co., 6th Cir. No. 22-3765 (Nov. 27, 2023). In this Rule 23(f) interlocutory appeal, the Sixth Circuit Court of Appeals remanded a putative class action filed against ten manufacturers of PFAS chemicals, otherwise known as “forever chemicals.” Studies have linked these chemicals a host of medical conditions. Plaintiff served as a firefighter for over 40 years and had used firefighting foams that contained PFAS.
The Court held that Plaintiff lacked standing because he failed to allege facts plausibly supporting an inference that each defendant “likely caused” at least one of the five PFAS compounds detected in his blood. It explained that a plaintiff cannot sue multiple defendants if more particular facts would only let him proceed against one. The Court noted Plaintiff’s failure to plead that any of the defendants, much less all of them, manufactured any of the PFAS chemicals involved and failed to allege any plausible pathway by which Defendants delivered the chemicals into his bloodstream. The Court rejected this type of “the-defendant-unlawfully-harmed-me accusation” as inadequate.
The Fifth District recently decided the case of Lowe v Lowe, 2023-Ohio-3415. The Court was asked to interpret ambiguous language in a separation agreement signed between a husband and wife, which had divided their assets and liabilities in a dissolution of marriage action. The specific section in question related to the parties’ marital residence. The appellate court held that the trial court has broad discretion to clarify ambiguous language. The question is not one of contract principles, though a separation agreement is a contract between the parties. Rather, the litmus test is a combination of balancing “the intent of the parties” with “the equities involved.”
NEW BOARD OPINIONS
The Ohio Board of Professional Conduct issued Advisory Opinions 2023-09, 2023-10, and 2023-11 on October 6, 2023.
A complete searchable collection of the Board’s advisory opinions, a subject index, and an advisory opinion status list are available here.
Opinion 2023-09
Opposing Counsel’s Preparation of Application to Settle a Minor’s Claim
A lawyer representing a tortfeasor may prepare the application to settle a minor’s claim in probate court when the plaintiff minor and the minor’s parents/guardians are unrepresented by counsel. The lawyer should inform the minor and the minor’s parents in writing that the lawyer is retained by the tortfeasor, that the lawyer does not represent the minor or parents/guardians, that the lawyer prepared the requisite court forms, and that the minor and parent/guardian have the right to secure their own independent counsel. The lawyer must make the same disclosures when appearing before the probate court. A lawyer representing a tortfeasor may not give legal advice to an unrepresented plaintiff minor or the minor’s parents.
CLICK HERE for the Full Opinion
Opinion 2023-10
Lawyer’s Obligation When Letter of Protection Issued to Medical Services Provider
A lawyer, with a client’s consent, may prepare a letter of protection that guarantees that proceeds from a future settlement or judgment will be withheld to pay a medical services provider. A lawyer may decline to follow a client’s instruction not to pay medical care providers from proceeds obtained by settlement or award when the client entered into a written agreement to pay the provider from the proceeds through a letter of protection. A lawyer must hold disputed funds involving two or more persons with a lawful interest in the funds in a lawyer’s trust account until the dispute is resolved.
CLICK HERE for the Full Opinion
Opinion 2023-11
Nonlawyer Employee Bonus Plan
A lawyer may not pay a bonus to a nonlawyer staff member based solely on the staff member receiving a positive online review. The Board recommends that the holding in this opinion be applied prospectively.
CLICK HERE for the Full Opinion
Harris v. Hildebrand, Slip Opinion No. 2023-Ohio-3005
A K-9 handling officer is not entitled to immunity as a matter of law for dog bites that occur at the officer’s home while he is off-duty
Reasonable minds could differ as to whether the officer acted manifestly outside the scope of his employment where the K-9 bit a social guest of the officer at a cookout at the officer’s home where the officer is required to keep the K-9 at his home as part of his duties. Simply because the officer is required to keep the dog at his residence does not preclude a finding that the officer’s conduct was manifestly outside of the scope of employment.
Appellant-Plaintiff alleged that Officer Hildebrand introduced Xyrem, his K-9 officer, into a situation where he and his guests were enjoying adult beverages. Plaintiff further alleged that Hildebrand let Xyrem drink beer that had been poured on the sidewalk. At some point during the cookout, Hildebrand gave commands to Xyrem and used actual contraband to demonstrate Xyrem’s training. Later, Xyrem approached Harris who was in the yard setting up a game, and bit her chest. Harris’ injuries resulted in medical care and surgery. This was an appeal from the Seventh District Court of Appeals. The trial court was Jefferson County Common Pleas.
Estate of Mehrer v. Walgreens Specialty Pharmacy, 2023-Ohio-2070
Family Can Pursue Pharmacy for Wrongful Death
The 10th District Court of Appeals reversed the Franklin County Common Pleas decision and entry granting summary judgment to Walgreens and remanded the case back to the trial court. The sole assignment of error was whether the trial court erred in granting the Appellee-Defendants’ summary judgment motion based on a finding of lack of proximate cause when Appellant-Plaintiffs expert affidavit alleged that “if not for the initial significant exposure [to opioids], the decedent would have had the potential to live up to his Division I scholarship potential, rather than drop out of school, and proceed to a heroin use disorder.”
In October 2009, Steven A. Mehrer was a senior football player at Dublin Jerome High School. He injured his shoulder in a football game and underwent a rotator cuff repair. Following the surgery, Walgreens dispensed 210 tablets of hydrocodone and 50 tablets of oxycodone over a period of 54 days. According to his parents, Steven became addicted to opioids and entered drug rehab five times before his death on October 8, 2017, approximately eight years after the initial exposure to opioids. Plaintiffs alleged that Walgreens owed a duty to dispense medications in good faith and that Defendants breached that duty when it filled prescriptions for a significant amount of opioids on four separate occasions over such a short period.
The trial court concluded that the estate could not demonstrate that Walgreens’ actions were the proximate cause of the death because Plaintiffs’ expert’s findings were speculative. The Court of Appeals reversed finding that Plaintiffs’ expert’s affidavit was enough to create a genuine issue of material fact as to proximate causation.
Bankruptcy trends are starting to increase, likely due to the rise in foreclosures (commercial and residential) and the restarting of student loan interest (September 1, 2023) and payments for most borrowers (October 1, 2023). The American Bankruptcy Institute Executive Director, Amy Quackenboss notes “More distressed consumers and businesses are turning to the financial lifeline of bankruptcy and while filings are still below levels seen prior to the pandemic, rising interest rates, inflationary pricing, and growing debt loads are contributing to an increase in households and businesses seeking a financial fresh start.”
The below are the trends seen as of 2023 year to date:
Ohio law allows the Court, in a divorce or custody matter, to order the parties and their minor children to submit to a psychological or psychiatric examination. R.C. 3109.04(C). The report must be made available to the parents or counsel of record no less than 5 days before trial. The investigator is subject to cross-examination concerning the contents of the report. This is commonly referred to as a Custody Evaluation. The Supreme Court of Ohio has recently introduced new Superintendence Rules 91.01, et seq, to further clarify and define the role and duties of a Custody Evaluator. The Custody Evaluator is considered the Court’s witness and the report must be considered by the Court when making its final determination.
3M Combat Arms Earplugs Products Liability Litigation: Settlement
On August 28, 2023, 3M announced a $6.01 billion settlement to resolve the 230,000+ claims filed against it in the Multi-District Litigation pending in the United States District Court for the Northern District of Florida before Judge M. Casey Rodgers. 3M is denying liability and claims that the earplugs involved in the litigation are safe and effective when used properly. Plaintiffs’ claims stem from allegations that the earplugs caused hearing loss and tinnitus after being used in training and combat situations from 2003-2015. The settlement came after 3M lost 10 of 16 cases that went to trial, leading to verdicts totaling more than $100 million against 3M.
The settlement is structured for 3M to pay $5.0 billion in cash with the remaining proceeds coming from the sale of $1 billion of 3M common stock. The settlement proposes to resolve all claims consolidated in the Northern District of Florida, as well as those brought in a coordinated state action in Minnesota.
3M has the ability to walk away from the settlement if less than 98% of eligible claimants decide to participate. Lead counsel have expressed confidence in being able to meet the threshold. Reports are that the proceeds will be paid out between 2023 and 2029 for claimants. If you have current clients in this litigation, please pay careful attention to the Court’s deadlines because the deadlines will come fast and reportedly will not be moved. Most firms are not expected to accept new clients based upon the strict deadlines.
Right now, if an individual is found to have become disabled as of a particular date, there is a five-month waiting period until they are entitled to benefits. Legislation has been introduced in both the US House and Senate aimed at reducing and eventually eliminating the number of months a Social Security Disability Insurance (SSDI) beneficiary is required to wait from the time of their established onset date of disability to when their benefits can be paid.
Revised Code 3109.04(C) provides the Court may cause an investigation to be made into the character, family relations, and past conduct of each parent. This may take the form of a psychological examination. Any report of such investigation must be made available to the parents and counsel not less than 5 days before trial, and the investigator is subject to cross-examination concerning the contents of the report.
In family law, this is often referred to as a Custodial Evaluation or Parenting Plan Evaluation. Recently, the Ohio Rules of Superintendence were updated to set forth various procedures, processes, responsibilities, and other guidelines that Courts can adopt in these scenarios. Superintendence Rule 91.01 et seq. is a more detailed and comprehensive provision than the Courts have previously utilized. It also paves the way for more uniformity in the use of these evaluations state-wide.
Ohio’s legislature recently passed Senate Bill 210. This bill will be effective April 1, 2023. The bill will allow spouses to engage in a postnuptial agreement. Prior to SB 210, prenuptial agreements (also called antenuptial agreements) were recognized, but if spouses attempted to enter into a contract after they were married and before deciding to separate, it was invalid on its face. Now, spouses can both create new agreements and modify or terminate a previously executed prenuptial agreement. Under this law, a postnuptial agreement is generally held to the same standard as a prenuptial agreement. I.e., it must be in writing, signed by both parties, entered into freely without duress, fraud, coercion, or overreaching. Further, the spouses must fully disclose to one another the nature, value, and extent of property they each have. Finally, the agreement must not promote or encourage divorce or profiteering from divorce.
Third Circuit Strikes Down Johnson & Johnson’s Bankruptcy Plan
On January 30, 2023, the Third Circuit Court of Appeals overturned Johnson & Johnson’s (J&J’s) attempt to avoid liability in over 38,000 talc-ovarian cancer and mesothelioma cases. Although a Third Circuit decision, this tactic has been a key to many large corporations’ efforts to avoid liability in large mass torts or class action cases. Instead of litigating a case to finality, J&J sought to file for bankruptcy with its subsidiary LTL formed with J&J’s talc interests, which it then underfunded but sought bankruptcy protection.
In overturning the bankruptcy plan, the Third Circuit found that the bankruptcy plan was not filed in good faith. The resulting relief came when the federal bankruptcy rulings supporting J&J’s injunction were reversed that had prevented plaintiffs’ cases from moving forward for months. Although J&J has vowed to fight to the end, J&J’s actions have caught the attention of Congress where hearings have been held and will continue to examine use of the bankruptcy process in this manner.
NEW BOARD OPINIONS
Opinion 2022-12
Prosecutor Preparation of Judgment Entry
A prosecutor may prepare a judgment entry at the direction of a judge. A prosecutor should not engage in subsequent communications with a court about changes or edits to a judgment entry that concern substantive matters or issues on the merits unless opposing counsel is included in the communications.
CLICK HERE for the Full Opinion
Opinion 2022-13
Taking of a Deposition by a Paralegal or Out-of-State Lawyer
A lawyer may not delegate the task of taking or defending a deposition to a paralegal. An out-of-state lawyer may take or defend a deposition in Ohio so long as he or she meets one of the exceptions contained in Prof.Cond.R. 5.5. An Ohio lawyer may take or defend a deposition in a state outside Ohio in which the lawyer is not licensed to practice law if permitted by that state.
CLICK HERE for the Full Opinion
The Ohio Supreme Court has issued two decisions over the last 30 days that will have a substantial effect on how attorneys should handle medical claims (and potentially other tort claims).
The first is Clawson v. Heights Chiropractic, Slip Opinion No. 2022-Ohio-4154, which held that if a physician cannot be held directly liable for malpractice, then a lawsuit seeking to hold the physician’s employer vicariously liable must be dismissed. This case involved a claim against a chiropractor who allegedly applied excessive pressure to her back, which resulted in the rupture of her left breast implant. The patient brought a lawsuit against the chiropractor and his employer, but failed to timely serve the chiropractor within the one year required by Ohio law. The chiropractor filed a motion to dismiss on the basis of service of process, which was granted by the trial court. The chiropractor’s employer then moved for summary judgment, arguing it could not be held vicariously liable if direct liability claims against the chiropractor had been extinguished, which was also granted by the trial court. The patient appealed to the Second District Court of Appeals, which affirmed the trial court’s decision to dismiss the chiropractor, but reversed the trial court’s decision granting summary judgment for his employer, finding the patient could still pursue her claims against the employer for the chiropractor’s alleged negligence, even then the direct claims against the chiropractor were properly dismissed. The employer then appealed the Second District’s decision to the Ohio Supreme Court, arguing that its prior holding in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594 (which held that a law firm cannot be vicariously liable for the negligence of its attorneys if the attorney is not determined to be liable or otherwise named as a defendant within the applicable statute of limitations) should be extended to medical claims. The Ohio Supreme Court agreed with this argument and held that Wuerth precludes a vicarious liability claim for medical malpractice against a physician’s employer when a direct claim against the physician is time-barred.
Here’s the problem: while the Supreme Court characterizes its decision as being “consistent with basic principles of agency law,” Justice Brunner’s dissenting opinion sets forth the fallacy in that reasoning. Longstanding Ohio agency law had previously held a tort victim could file a lawsuit “against either the master or the servant, or against both.” See Losito v. Kruse, 136 Ohio St. 183, 187-188 (1940). Now, at least in medical claims and legal malpractice claims, a tort victim must sue both he negligent attorney/physician/employee, as well as the hospital/law firm/employer. And while it is has yet to be explicitly expanded beyond these two types of tort claims, if the Ohio Supreme Court believes “basic agency law” to mean an individual employee must be a named defendant in order to hold his or her employer vicariously responsible, Ohio practitioners could soon be tasked with identifying negligent employees within the applicable statute of limitations and naming them as defendants, or risk committing legal malpractice.
The second case is Walling v. Brenya, Slip Opinion No. 2022-Ohio-4265. This case held that a negligent credentialing claim cannot proceed unless there is either a simultaneous or prior adjudication of or stipulation that a doctor committed medical malpractice. In Walling, the family of a patient brought a wrongful death/medical negligence claim against the physician, as well as a negligent credentialing claim against the hospital. The family and the physician later reached a settlement related to the wrongful death claim and medical malpractice claim, which was devoid of any admission of liability by the physician. The hospital subsequently moved for summary judgment on the negligent credentialing claim arguing that without any adjudication or stipulation that the physician was negligent, the family could not maintain its negligent credentialing claim. The trial court granted the hospital’s motion, and that decision was ultimately affirmed by both the Sixth District Court of Appeals and the Ohio Supreme Court. While this case does not change how negligent credentialing cases are likely to be handled by practitioners in Ohio, it does confirm what many had already assumed by reading between the lines of prior decision: that malpractice by a physician must affirmatively be established in order to proceed with a negligent credentialing claim in Ohio.
Although consumer bankruptcy filings are the lowest they have been in 20 years, the filing numbers are being forecasted to increase in 2023. A significant update was provided by the Department of Justice in November regarding the dischargeability of federal student loans in bankruptcy cases (https://www.justice.gov/opa/pr/justice-department-and-department-education-announce-fairer-and-more-accessible-bankruptcy). This update came after various courts around the US began challenging the legality of President Biden’s student loan forgiveness plan (most notably, the injunction issued by the United States Court of Appeals for the 8th Circuit). Reports indicate that when this issue reaches the Supreme Court of the United States, it will likely be struck down by the conservative majority.
On a positive note, the November 2022 filings for Chapter 11 bankruptcies increased 74% over the November 2021 filings.
On a procedural note for anyone that practices bankruptcy, effective on December 1, 2022, there were several amendments to the Federal Rules of Bankruptcy Procedure and Official Bankruptcy Forms (https://www.ohsb.uscourts.gov/news/amendments-federal-rules-bankruptcy-procedure-and-official-bankruptcy-forms).
Sixth Circuit affirmed U.S. District Court for the Northern District of Ohio grant of summary judgment in favor of Chapter 13 debtor’s former employer in civil lawsuit alleging violation of the Family and Medical Leave Act (“FMLA”) where debtor did not disclose claim on his bankruptcy schedules until three years post-petition.
CLICK HERE for the full opinion.
NEW BOARD OPINIONS
Adv. Op. 2022-08
Judge Attendance at Exclusive Training for Members of Law Enforcement and Prosecutors
A judge should not attend a training course that is offered by a law enforcement agency and open exclusively to judicial officers, prosecutors, and members of law enforcement. The Board recommends prospective application of this advisory opinion.
CLICK HERE for the Full Opinion
Adv. Op. 2022-09 (Withdraws Adv. Op. 2004-3, 2009-7)
Magistrate Simultaneously Holding a Nonjudicial Elective Office
A full-time or part-time magistrate may not seek election to, or serve on, a local, city, or state board of education, city council, or county board of commissioners.
CLICK HERE for the Full Opinion
Adv. Op. 2022-10 (Withdraws Adv. Op. 2004-3)
Magistrate Serving as a Trustee of a Nonprofit Condominium Association
A magistrate may serve as a trustee of a nonprofit condominium association if the extrajudicial activity does not undermine the magistrate’s independence, integrity, or impartiality, lead to frequent disqualification, or interfere with the performance of judicial duties.
CLICK HERE for the Full Opinion
Adv. Op. 2022-11 (Withdraws Adv. Op. 1991-09)
Lawyers Sharing Office Space, Nonlawyer Staff, and Dividing Fees
A lawyer may share office space, computer equipment, and support staff with other lawyers in an office sharing arrangement. A lawyer in an office sharing arrangement may divide fees with another lawyer in the office subject to the Rules of Professional Conduct.
CLICK HERE for the Full Opinion
Two recent cases addressed the ability of financial institutions to “pick off” a class representative by unilaterally refunding account fees after the filing of a class action complaint but before attempted class certification.
In Blus v. Civista Bank, Erie C.P. No. 2022-CV-0094 (Aug. 23, 2022), the court addressed a case in which the plaintiff brought claims for breach of contract and unjust enrichment claiming that the defendant bank had charged her improper overdraft fees. On the same day she filed her class action complaint, the plaintiff also filed a motion for class certification with a request to supplement the motion after completion of class discovery. The bank responded by attempting to “pick off” the plaintiff: the bank refunded the fees to her account and moved to dismiss the case on the grounds that absent an injury in fact, the court lacked jurisdiction and the plaintiff could not proceed as a possible class representative. The court denied the motion to dismiss.
In the subsequent Wilson v. Directions Credit Union, Lucas C.P. No. CI22-1844 (Sept. 29, 2022), however, another court accepted a pick-off as divesting the court of subject matter jurisdiction. In that case, the plaintiff brought claims for breach of contract and unjust enrichment claiming that the defendant credit union had charged her improper overdraft fees. After she filed her complaint, the credit union refunded the fees to her account and moved to dismiss the case. The court held that because the plaintiff had not complied or attempted to comply with the requirements of Civ.R. 23 to establish class certification, “[c]ertification has not been pursued with reasonable diligence.” Finding no injury in fact, the court dismissed the class action complaint.
The takeaway for practitioners is that best practices dictates filing a complaint and a placeholder motion for class certification prior to a defendant financial institution being aware of the lawsuit and engaging in an attempted pick off to avoid a class action.
BOARD OPINION 2022-06 Issued June 10, 2022 Withdraws Adv. Op. 1993-7
Conflicts Arising out of Personal Relationships with Opposing Counsel
SYLLABUS: Spouses may not represent opposing parties without informed, written consent of the affected clients. When a prosecutor-spouse and criminal defense lawyerspouse are practicing in the same jurisdiction, the best practice is for the prosecutor’s office to assign another prosecuting attorney to the case and screen the prosecutor-spouse from any matter involving his or her spouse.
Other lawyers in the lawyer-spouse’s law firm may represent criminal defendants without disclosure and consent, so long as the lawyer does not have a close personal relationship with the specific prosecutor assigned to the case. The lawyer-spouse may represent criminal defendants without disclosure and consent so long as the lawyerspouse does not have a close personal relationship with the specific prosecutor assigned to the case. If a lawyer shares a close personal relationship with the prosecutor assigned, the lawyer must obtain informed written consent from the client.
Domestic partners, individuals in an intimate relationship, close friends, and roommates have the same duties as those in spousal relationships in evaluating potential conflicts of interest. Lawyers who are domestic partners or in intimate relationships are advised to adhere to the client consent and disclosure obligations applicable to married lawyers. Lawyers in other relationships should consider the characteristics present in the relationship and exercise professional judgment regarding client disclosure and consent.
At a minimum, a lawyer seeking client consent to a conflict should disclose any shared financial or personal interests, explain the fact that there is a presumption of confidences and loyalty between those in a personal relationship, and explain the risks of breach of the duty to loyalty and confidentiality based on that relationship. A written disclosure should contain the above information, the precise nature of the relationship giving rise to the to the conflict, and alternatives to the representation.
CLICK HERE to view the full Board Opinion.
New Board Opinions
The Board approved three advisory opinions on June 10. Adv. Op. 2022-4 discusses the imputation of prosecutor conflicts and replaces former Adv. Op. 1998-15. Adv. Op. 2022-5 addresses the propriety of lawyers notarizing client affidavits, and Adv. Op. 2022-6 analyzes conflicts of interest where two lawyers represent opposing parties and are involved in a personal relationship. The latter opinion replaces Adv. Op. 1993-7 and expands the advice contained in the earlier opinion to address marital and nonmarital relationships.
CLICK HERE to read 2022-05, the opinion on Lawyer Notarization of client affidavits. Although this particular issue may not frequently come up, the opinion provides a good discussion of the application of Rule 3.7 the advocate-witness Rule, as well as a summary of appellate case law on the subject and is worth reviewing if you find yourself considering asserting or defending a Motion to DQ a lawyer based on the lawyer potentially being named as a witness.
Board Opinion 2022-03
Board Opinion 2022-03 is about communications with government employees and may be of interest to anyone handling Court of Claims cases. Its syllabus provides:
A lawyer is prohibited from directly communicating with a current employee or official of the government (a) who supervises, directs, or regularly consults with the government’s counsel concerning a matter, (b) who has authority to obligate the government with respect to the matter, or (c) whose act or omission in connection with the matter may be imputed to the government. A lawyer representing a client may communicate directly with a government official or employee if the purpose of the communication i s to address a policy issue rather than the negotiation or litigation of a specific claim, the official or employee has the authority to recommend or act concerning the policy issue, and reasonable advance notice is given to government counsel of the intended communication. A lawyer may address a government official or employee on behalf of a client at a public meeting without the permission or presence of the government’s counsel. Government counsel cannot assert blanket representation of all employees a prevent direct communication by opposing counsel. And officials in a matter to A lawyer should not deliver a formal settlement proposal in a matter to a government officer or employee unless the lawyer has obtained consent of government counsel.
Board Opinion 2022-02
Board Opinion 2022-02 is about judges serving on various Boards.
Full opinions can be found through the links above.
Under In re Perales, 52 Ohio St.2d 89, a parent has a paramount right to custody of their child unless he or she is “unfit.” In order to prove the parent is unfit, the non-parent must show by a preponderance of the evidence that the parent has abandoned the child, contractually relinquished custody of the child, is unable to provide care or support, or that the parent is otherwise unsuitable. Id. On a post-decree motion for custody between the parent who was previously found unfit and the non-parent with custody, the best of interest of the child controls. Masitto v Masitto, 22 Ohio St.3d 63. The parent must show that it is in the child’s best interest for him or her to regain custody and does not need to prove a change of circumstances. Id. See also Wilburn v Wilburn, 144 Ohio App.3d 279.
Eaton v. Ascent Resources – Utica, LLC, S.D. Ohio Case No. 2:19-cv-3412
On August 4, 2021, Judge Edmund A. Sargus, Jr. issued an Opinion and Order certifying a class and five sub-classes of persons or entities alleging underpaid royalties from Ascent Resources – Utica, LLC (“Ascent”) based upon leases for gas or oil wells. This landmark ruling marks one of the first cases in which an Ohio court has certified a class action regarding the underpayment of oil and gas royalties. Three of the subclasses involve Plaintiffs’ claims that Ascent systematically overcharges landowners for post-production expenses such as gathering, compression, processing of liquids, and pipeline transportation charges. According to Plaintiffs, Ascent pays these expenses to “affiliated” companies in violation of the law and then takes inflated deductions from the landowners for these expenses. The end result is that mineral owners’ net royalties are significantly reduced. The remaining two subclasses involve “market enhancement” leases, which require Ascent to increase or enhance the value of the product sold before being able to take various deductions. Plaintiffs alleged that Ascent fails to satisfy this condition precedent.
On August 14, 2021, Ascent filed a motion for leave with the Sixth Circuit Court of Appeals to obtain an interlocutory appeal of the class certification under Fed. R. Civ. P. 23(f). Plaintiffs filed their opposition on August 20, 2021. The matter has been fully briefed. Discovery will proceed on liability issues in the district court while the request for an interlocutory appeal is pending.
OPINION 2021- 02 Issued April 9 , 2021 Withdraws Adv. Op. 2001-03
Loan from Financial Institution to Advance Costs and Expenses of Litigation
SYLLABUS: A law firm may obtain a loan from a financial institution to advance costs and expenses of litigation in a personal injury matter accepted on a contingent fee basis. The law firm may deduct the interest, fees, and costs of the loan from a client’s settlem ent or judgment as an expense of litigation, provided certain conditions related to the lawyer’s communication with the client and written contingent fee agreements are satisfied. This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of t his advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct.
OPINION 2021-04 Issued June 11, 2021
Competitive Keyword Online Advertising
SYLLABUS: A lawyer or law firm may not purchase the name of another lawyer or law firm for use in competitive keyword online advertising.
BOARD OPINION 2021-07 Issued August 67 , 2021 Withdraws Adv. Op. 9103
Employment Agreements Regarding Division of Fees Earned Post Separation
SYLLABUS: A law firm may not require an associate to sign an employment agreement that requires the associate, upon leaving the firm, to pay the firm a percentage of fees earned thereafter from clients who have elected to remain clients of the departing associate. This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct.
Can the statute of limitations for a wrongful death claim expire when that person is still living? The Fifth District Court of Appeals recently answered that question in the affirmative in Mercer v. Keane, 2021-Ohio-1576 (5th Dist.).
In Mercer, the plaintiff filed a lawsuit against a defendant-physician and his radiology group in August 2016 for failing to diagnose a sacral mass that was clearly visible on an MRI performed and interpreted in December 2012. The plaintiff discovered the presence of the mass two and a half years later, in May 2015, when he had another MRI, which revealed the presence of a now inoperable sacral mass. The plaintiff died in February 2020 during the pendency of his lawsuit. Following his death, his wife was appointed the executor of his estate and moved to substitute the estate as the proper party. She also sought leave to amend the complaint, which the court granted, and she added the wrongful death claim and converted the medical negligence claim to a survivorship claim. Because the amended complaint was filed more than seven years after the alleged negligence, the defendants filed a motion for partial summary judgment and motion for judgment on the pleadings arguing the wrongful death action was time barred pursuant to R.C. 2305.113(C) as it was filed beyond the four-year statute of repose. The trial court granted defendants’ motions on the basis that the wrongful death action was based on a medical claim and, thus, was time barred since it was not commenced within four year of the negligence. The estate appealed the trial court’s decision.
The Fifth District Court of Appeals, relying on recent Ohio Supreme Court cases Wilson v. Durrani, 2020-Ohio-6827, and Antoon v. Cleveland Clinic Foundation, 2016-Ohio-7432, held that “while the wrongful death action is based on the same alleged act or omission as raised in the timely filed medical malpractice action, the wrongful death action is a new and independent action subject to the medical claim statute of repose.” Mercer, at ¶ 38. In so reasoning, the appeals court noted “[t]he Supreme Court of Ohio stated that Ohio’s medical-claim statute of repose clearly and unambiguously bars ‘any action’ bringing a medical claim commenced more than four years after the occurrence of the act or omission constituting the basis for the claim.” Id., citing Antoon, at ¶ 23. “Because any action brining a medical claim is barred by Ohio’s medical-claim statute of repose if it is not timely commenced, we conclude that wrongful-death actions fall within the scope of ‘any action’ and are subject to the time restraints of the statute of repose.” Id., citing Smith v. Wyandot Mem. Hosp., 3rd Dist. No. 16-17-07, 2018-Ohio-2441, ¶ 22.
The Fifth District then went on to state: “[w]e acknowledge the result of this appeal is harsh and perhaps unintended by the General Assembly when it crafted the medical claim statute of repose, especially considering the advances in medical care allowing people to live longer with a diagnosis of cancer or other life-threating malady. As the Ohio Supreme Court acknowledged in Wilson, however, allowing an extension to file a wrongful death action may not impair the underlying purpose of the of the statute of repose, but that is a call for the legislature, not this Court.” Id. at ¶ 41, citing Wilson, 2020-Ohio-6827, ¶ 37.
Given this recent decision and until the General Assembly decides to amend R.C. 2305.113, attorneys handling medical negligence claims should consider filing any potential future wrongful death claims they may have related to that care and treatment within four years of the date of the alleged negligence, even if that client is still alive.
Interim Administrator of the Bureau of Workers’ Compensation, John Logue, spoke as a witness in front of the Ohio House Insurance Committee on February 24, 2021. His prepared statement is available on the Ohio Legislature’s website. His conclusion was as follows:
“We have reduced rates and returned dividends to Ohio employers of more than $15 billion over the last decade – this includes at least $9.2 billion since 2019.
We truly want to be a partner in the economic success of our state and want to do all we can to keep costs as low as possible for our employers, while maintaining the best workers’ comp services this country has to offer. Our strong financial position allows us to issue dividends, cut rates, and provide grant opportunities to assist employers with maintaining a safe workplace. We will continue to practice sound fiscal management to ensure we can pay workers’ comp claims, provide cost savings to employers, and position BWC as an economic asset to Ohio.”
Although Mr. Logue makes a reference to “maintaining a safe workplace,” it is clear that his focus is not on the injured workers’ in Ohio, but on minimizing cost to employers and operating as an “economic asset” to the state.
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House Bill 75 is the BWC budget bill. OAJ Workers’ Compensation Chair Troy Duffy reported to OAJ members that several amendments had been proposed that would potentially limit loss of use payments in death claims, and result in forfeiture of loss of use payments (due to family members) upon death of the injured worker. Mr. Duffy reported that the status of these amendments was changing daily and that the situation was fluid.
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Few cases of note in the area of Workers’ Compensation have been decided by Ohio’s appellate courts/Supreme Court in the past several months. Perhaps most instructive is Webster v. Altenloh Brinck & Co., U.S., Inc., et al., 2021-Ohio-1072. Therein, the Sixth Appellate District considered the nature of the diagnosis of “closed head injury.” The Plaintiff’s medical expert, a chiropractor, supported the diagnosis of closed head injury, but made no reference in her testimony to reliance on any examination findings or reports of symptoms by the injured worker. There was additional layperson testimony as to the mechanism of injury. The court found the Plaintiff/injured worker failed to satisfy her burden of producing sufficient medical testimony to support the diagnosis of her chiropractor. It thus found the trial court did not err in granting defendant’s motion for a directed verdict.
The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 496 – Responding to Online Criticism.
The digest reads:
Lawyers are regularly targets of online criticism and negative reviews. Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule. As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.
A recent Supreme Court decision, Bruns v Green, 2020-Ohio-4787, makes clear that a court only needs to consider the best interest of the child(ren) when deciding whether to terminate a shared parenting decree. The court does not need to consider whether there has been a change of circumstances. This decision is based on the plain language of the statute, which indicates that a court may terminate a shared parenting decree if requested by a party or whenever the court determines shared parenting is not in the best interest of the child. R.C. 3109.04(E)(2)(c). Then, the court proceeds as if no prior decree had been issued. R.C. 3109.04(E)(2)(d). The Court distinguished this case from its prior decision Fisher v Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589, which holds that modifying the designation of residential parent and legal custodian requires finding a change of circumstances. Id. at syllabus, citing R.C. 3109.04(E)(1)(a). The distinction is fine and comes down to the language used by the appellate court in Fisher when it determined that it was modifying, as opposed to terminating, the decree.
OPINION 2020-06 Issued August 7, 2020 Withdraws Adv. Op. 98-05 Lawyer Departing Law Firm
SYLLABUS: A law firm and a lawyer leaving the firm have an ethical obligation to ensure that affected clients are informed of the lawyer’s departure. A law firm and departing lawyer may jointly or separately notify affected clients of the lawyer’s departure from the law firm. The notice may indicate the availability and willingness of the lawyer or law firm to continue to provide legal services to the client. A lawyer and the law firm must accept a client’s choice of counsel prompted by the departure of a lawyer from the firm. A law firm cannot prevent a departing lawyer from notifying affected clients for whom he or she has principal responsibility.
OPINION 2020-07 Issued August 7, 2020 Withdraws Adv. Op. 91-18, Modifies Adv. Op. 96-3 Use of Surname of Retiring or Inactive Lawyer in Law Firm Name and Letterhead
SYLLABUS: A law firm may continue to include in the firm name, in a continuing line of succession, the surname of a retiring lawyer granted retired or inactive registration status by the Supreme Court. A law firm may continue to list on its letterhead the name of a lawyer registered with the Supreme Court as “retired” or “inactive” if the name of the lawyer is designated with his or her registration status. A lawyer retiring from a law firm, and maintaining an “active” registration status, may become “of counsel” to the firm as long as the lawyer maintains a continuing and close, regular, personal relationship with the firm. A lawyer granted “retired” or “inactive” registration status may not serve as “of counsel” with any law firm. A law firm may continue to include in its firm name, the surname of lawyer who has retired from the firm and later becomes “of counsel” to the firm.
OPINION 2020-08 Issued August 7, 2020 Withdraws Adv. Op. 2000-4; Adv. Op. 2001-4 Providing Financial Planning Services and Products Through a Law Firm
SYLLABUS: A lawyer may provide financial planning services through a law firm on a fixed fee, flat or hourly, basis. When a lawyer provides financial planning services through a law firm in connection with legal services, all services provided by the firm are subject to the Rules of Professional Conduct. A lawyer may not charge a fee for financial planning services provided through a law firm based on a percentage of the assets managed for a client. A lawyer may not sell financial products, such as annuities, through the law firm to estate planning and business clients. Client consent cannot ameliorate the conflicts present when a lawyer provides financial planning services through a law firm based on a percentage of assets managed basis or when a lawyer sells financial products to clients.
OPINION 2020-09 Issued August 7, 2020 Withdraws Adv. Op. 2002-1 Payment of an Annual Fee to a Real Estate Agency for Participation in Benefits Program
SYLLABUS: A law firm may not enter a business agreement to pay an annual fee to a real estate agency and offer discounted legal services to customers of the real estate agency in exchange for the real estate agency promoting the law firm as a service provider in a real estate benefits program.
On July 29, 2020, the Ohio Supreme Court ruled that Ohio law allows a person to pursue a civil lawsuit based on injuries caused by a criminal act without having to show the crime resulted in a conviction. READ MORE
On June 15, 2020, the US Supreme Court decided that it is unlawful for an employer to fire someone for being transgender or gay. READ MORE
The Supreme Court of Ohio recently reviewed the issue of doctor-patient privilege in divorce, child custody, and spousal support cases. Because these are “civil cases,” they are an exception to doctor-patient privilege under R.C. 2317.02(B)(1)(a)(iii). Therefore, a litigant’s privilege is waived. The records of that litigant’s doctor can be compelled and the doctor can be compelled to testify. It does not matter if the opposing party has an issue specifically related to the underlying claim, because the statutes direct the court to consider it broadly. See R.C. 3109.04(F)(1) and R.C. 3105.18(C)(1)(c). The Court’s duty is not dependent on opposing party’s claims and is therefore not limited. However, where there is a dispute as to specific records and their relevance, the Court should first review the records in camera. The Court did not make a specific finding relative to protective orders, but condoned the lower court’s order to release the records to the litigants and their attorneys subject to a protective order. This decision is specific to doctor-patient privilege and does not extend to social worker or counselor privilege, which is under a different statute (R.C. 2317.02(G)(1)) with its own statutory exceptions not reviewed in this decision.
Torres Friedenberg v Friedenberg, 2020-Ohio-3345
(1) House Bill 81 – passed house and senate and now awaits final signatures
(2) Industrial Commission: Status
At the beginning of the Covid-19 pandemic in Ohio the Industrial Commission (the adjudicatory body that resolves Workers’ Compensation disputes) moved to conducting all hearings by telephone. The process has evolved over time, but the I.C. is now conducting 2 hearings per hour
(except re: Permanent Partial Disability hearings at 6 per hour) in 6 docket slots (9a, 10a, 11a, 1p, 2p, 3p). Previously most hour-long dockets were set for 4 hearings, and there were 5 docket slots (9a, 10a, 11a, 1:30p, 2:30p). As such, total hearing capacity is still down. Further, until 6/23/20 the I.C. was not conducting any hearings re: treatment, VSSR, and loss of use. They
were conducting (and will continue to conduct) initial claim allowance hearings, as well as hearings re: additional allowances, temporary total disability, permanent total disability, wage loss, and permanent partial disability.
Biggest development here for injured workers is the resumption of treatment hearings.
Per conversation our hearing coordinator had with Cynthia Slocum (I.C. Hearing Administrator) on 6/10/20 no one is allowed in the I.C. at this time, including staff. Employees must have administrative approval to enter. Faxes have been sitting for upwards of 2 weeks. The takeaway: if you have something urgent (like emergent treatment request) make sure to upload to ICON and do not rely just on fax.
Automobile Insurance Contract Interpretation; Supreme Court of Ohio – Decided May 6, 2020
In a case in which the insured’s sister was driving a car covered under the automobile-insurance policy when it struck a pedestrian, summary judgment was properly granted to the insurer finding that the policy was void ab initio because the insurer plainly incorporated the insured’s application into the policy; the policy stated that answers provided to questions in the application were warranties, which, if incorrect, could void the policy from the beginning; the policy stated that information provided regarding other operators in the household was a warranty; and the insured incorrectly stated that she was the only member of her household.
A magistrate’s decision granting, denying, or modifying a Civil Protection Order (CPO), including a civil stalking protection order or civil sexually oriented offense protection order, is a final appealable order. However, before an appeal can be prosecuted, a party must first file objections to the magistrate’s decision. The process of objections stays the time for an appeal. An appeal taken prior to objections will likely be dismissed under Civil Rule 65.1(G). This subsection of Civil Rule is a 2016 amendment to the rule, which used to provide for permissive objections. Objections are now mandatory under the Ohio Rules of Civil Procedure. The Tenth District sees this rule as jurisdictional. CF v THR, 2018-Ohio-488, P6, citing Martin v Dockter, 2018-Ohio-858, P6.
Underinsured Motorist Coverage for Employee (Martens v. Auto-Owners Inc. Co.)
An employee was standing feet away from his employer’s vehicle speaking with his boss concerning details of a job. The vehicle was parked on the side of a street, and there were cones around the vehicle. A negligent, underinsured driver struck the employee and the truck. The company argued that the employee was not covered under the insurance policy because he was not “occupying” a vehicle at the time of the accident (specifically, the employee was not “in, on, entering, exiting, or alighting from the vehicle at the time of the accident”). The trial court agreed with the company, but the Court of Appeals of Ohio, Sixth Appellate District found that the term “occupying” was ambiguous when used in a car-insurance context. The claimant must be “in close geographic proximity with the vehicle . . . have a sufficient relationship with the vehicle, and . . . [act] with a purpose related to the vehicle.” Martens v. Auto-Owners Ins. Co., 6th Dist. Lucas No. L-19-1011, 2019-Ohio-5423, ¶ 24
Kisling, Nestico & Redick, L.L.C. v. Progressive Max Ins. Co., Slip Opinion No. 2020-Ohio-82.] Charging lien—Insurer who settles a personal-injury claim with an accident victim does not have a duty to distribute a portion of the settlement proceeds to the victim’s former lawyer pursuant to a charging lien.
The Supreme Court of Ohio held that even if the trial court retains jurisdiction to modify a provision in a decree related to property division, it must still find that a party has met the requirements of Civil Rule 60(B) before it may exercise that authority. A trial court retains jurisdiction to modify a property division only when it is expressly written into the decree or the parties agree to a modification. As Civil Rule 60(B) is a “procedural rule,” it cannot modify any substantive right, including the statutory provision limiting modification of a decree.
Walsh v Walsh, Slip Opinion No. 2019-Ohio-3723
I am honored to be your committee chair for negligence and insurance law. I will do my best to provide you with tips, updates, and will try to answer any questions you all may have! There are several resources that provide short summaries of current case law pertaining to negligence and insurance law. I would encourage you to subscribe to daily newsletters and reports to stay current on cases in Ohio. The Columbus Bar Association offers its members access to the legal research engine “fastcase”, which is a nice alternative to Lexis or Westlaw. Listserv’s are great for keeping in the loop and also to utilize when you are struggling with a certain topic, as one of your peers has likely encountered a similar scenario.
1) A restaurant customer was walking through an aisle at a restaurant when a waitress suddenly backed into him, causing him to fall and sustain a serious injury. The restaurant alleged an open and obvious defense, but the 12th District appellate court focused on the distinction between static and active negligence, and held that the open and obvious doctrine applied only to static conditions on a premises, and was therefore not applicable here. Wulf v. Bravo Brio Restaurant Group, Inc., 12th Dist. Butler No. CA2018-12-238, 2019-Ohio-3434.
2) A shopping center customer was run down following an altercation in a parking lot and filed suit against the storeowners for a failure to warn or protect him against criminal acts by third parties. The 10th district appellate court looked at whether the specific harm was foreseeable through a totality of circumstances analysis (A security consultant had warned the company a year prior about the threat of parking lot violence; affidavits from video surveillance providers pertaining to the owner’s knowledge of violence in the lot). Davis v. Hollins, 10th Dist. Franklin No. 17AP-716, 2019-Ohio-1789.
1) Plaintiff filed suit against a child’s service agency because her children were sexually abused while in foster care. The appellate court decided the agency was immune from liability under RC 2744.02; however, the appellate court upheld the trial court’s decision to deny the motion for summary judgment on behalf of the social workers because there was evidence that they had knowledge of the abuse. T.B. v. Summit Cty. Children Servs. Bd., 9th Dist. Summit No. 28644, 2019-Ohio-3346.
2) An older case that is still good law: City was not immune from liability under the recreational user statute for injuries sustained by a bicyclist because he fell on a roadway that was available to the public for travel by both vehicles and bicyclists for non-recreational travel. Vinar v. City of Bexley, 142 Ohio App.3d 341, 755 N.E.2d 922 (10th Dist.2001).
OPINION 2019-6 Issued August 2, 2019 Withdraws Adv. Op. 1992-08 Ethical Obligation to Deliver a Former Client’s File
SYLLABUS: A lawyer’s file related to the representation of a client constitutes the “papers and property” of the client. A lawyer is not required by the Rules of Professional Conduct to maintain a former client’s file for a minimum period of time after termination of representation. When a lawyer has maintained a former client’s file for a substantial period of time after termination of representation, he or she is required to promptly deliver the file upon the client’s request. A lawyer should deliver a former client’s file in the same manner it was maintained or in an accessible format if the file was stored digitally.
Full opinion at: https://ohioadvop.org/wp-content/uploads/2019/08/Adv-Op-2019-06-Final.pdf
OPINION 2019-7 Issued August 2, 2019 Withdraws Adv. Op. 2002-5 Donation of Legal Services to be Auctioned for Charity
SYLLABUS: A lawyer is prohibited from donating legal services to be auctioned or raffled at a fundraiser for a charitable organization. A lawyer’s donation of legal services to be auctioned or raffled for a charitable organization is giving a thing of value to another for recommending the lawyer’s services. A lawyer’s agreement with a charitable organization to provide legal services to an unknown donor may improperly limit the exercise of the lawyer’s independent professional judgment as to whom to accept as a client and what services to provide. It is misleading for a lawyer to donate legal services that he or she may not be able to provide due to conflicts of interest, the complexity of the legal matter, and the lawyer’s relative skill and competence.
Full opinion at: https://ohioadvop.org/wp-content/uploads/2019/08/Adv-Op-2019-07-Final.pdf
All Board Opinions can be found online at: https://www.bpc.ohio.gov/advisory-opinions
As many of you may know, Equifax recently settled with regard to claims against it for the data breach that it announced in September 2017. See https://www.equifaxbreachsettlement.com/. News reports typically tout the potential $125 per class member award if your data was comprised as part of the breach. In the alternative, class members are entitled to 4 years of credit monitoring through Experian, plus up to 6 more years of credit monitoring from Equifax. You may also seek recovery for time spent dealing with the breach, out-of-pocket losses, and a partial offset for the cost of any credit monitoring service that you paid for before the settlement was announced. You can use this link to fill out the claim forms and send it on to clients and friends.
We have examined the settlement and have opinions about the importance of strongly considering the credit monitoring option. First, even 4 years of credit monitoring exceeds the value of the advertised $125 payment. Second, and maybe more important to consumers, they are expecting such robust participation in the settlement that the per class member compensation from the pool of money available for cash payments will not reach $125. In other words, consumers will not receive the estimated $125 payment because the number of participants is going to exceed initial expectations. Finally, from an accountability standpoint, the credit monitoring services force Equifax to pay even more to compensate consumers for its breach of their information.
Ohio’s laws on calculation of child support have changed, effective March 28, 2019. For orders effective prior to that date, the old laws will still be applicable to the calculation of child support. If the order is effective March 28, 2019 or after, the new laws apply. The financial data used in creating the child support calculations has been updated for the first time since 1992. Additionally, under the new child support laws, automatic adjustments are made to the calculation based on the number of overnights each parent has with the child(ren). There has also been a change to the way in which a parent is credited with carrying private health insurance for the child(ren), which was intended to bring calculation of support in line with the Affordable Care Act. This report is not meant to provide an exhaustive list of all the changes made to the child support statutes, as a number of other factors and procedures have been adjusted.
BOARD OPINION 2019-2
Issued April 5, 2019
Withdraws Adv. Op. 2002-12
Transfer on Death of a Lawyer’s Shares in a Law Firm to a Revocable Trust
SYLLABUS: A lawyer may not participate in a law firm in which a member, partner, or other equity holder is a nonlawyer or practice in a law firm if a nonlawyer will own any interest in the law firm. A lawyer must avoid designating his or her interests or shares in a law firm as transfer-on-death to the successor trustee in a revocable trust, becoming an irrevocable trust upon death, when one or more beneficiaries of the trust are nonlawyers.
The Tenth District recently held that the trial court did not err in finding that a spousal support obligation is not permanently waived by an agreement reached between the parties via email to reduce support temporarily. In King v. King, 18AP-84, the appellate court affirmed the trial court’s holding that although the parties agreed to temporarily reduce Appellant’s spousal support obligation, Appellee was not barred by laches or waiver in seeking payment of the full court-ordered amount. The trial court found it inequitable to hold Appellant in contempt for his failure to pay the full amount, given their agreement. However, Appellant was ordered to liquidate the full amount, notwithstanding their email agreement to reduce his spousal support.
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