The Law School Magazine  ·  Spring 2008 :

Professional Responsibility: The Move from Bright Line Rules to Aspirational Disciplinary Standards

By - Spring 2008
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The “new” Ohio Rules of Professional Conduct (the “Rules”) have now been effective for well over one year.  Although Ohio’s adaptation of the American Bar Association “Model Rules” moves Ohio into the overwhelming majority of states using some form of those rules, the lawyers of Ohio are only beginning to realize how that departure from an established tradition will impact the practice of law.

Although these new standards of practice have been the topic of discussions, seminars, and analysis now for almost two years, some of the remarkable (and apparently unintended) consequences of Ohio’s essential abandonment of the “common law” of lawyering are now coming to the surface.  As lawyers, the thought that these rules will not be literally enforced gives little comfort.  If the Rules are not intended to mean what is written, repeal and modification is in order.

How We Arrived

Ohio adoption of the Rules followed the March 2003 appointment of a task force by Supreme Court of Ohio Chief Justice Thomas J. Moyer to study implementation of the ABA Model Rules.  The effort included the conduct of dozens of meetings and “hearings,” and the gathering of comments from various bar associations and other interested individuals, followed by a six-month implementation period.

The old Code of Professional Responsibility provided nine general “canons” of professional conduct, each followed by numerous Ethical Considerations (ECs) therein designated as “aspirational.”  Each of the nine canons were implemented through nine areas of hard-and-fast Disciplinary Rules (DR), providing minimum standards for attorney conduct.  In contrast, the new Rules of Professional Conduct merge mandatory standards, discretionary recommendations, and aspirational suggestions all into various “rules” and “comments.”

Perhaps of the greatest interest is consideration of the multiple duties (alternative “hats” so to speak) imposed upon a lawyer as impacted by the attorney’s interaction with clients, opponents, tribunals, and third parties.  One may have varied duties as an “advocate,” a “counselor,” an “arbitrator,” a “mediator,” a “third-party neutral,” as a “prosecutor,” or as a “witness.”  There are unique responsibilities imposed upon an advocate in nonadjudicative proceedings, and special responsibilities imposed in dealing with unrepresented parties and “subordinate lawyers.”

Laudable Objectives, Ambiguous Path

In a long and eloquent “Preamble,” the new Rules are introduced with an early acknowledgment that a lawyer performs “various functions,” in an apparent attempt to distinguish the lawyer’s undivided loyalty to a client from other duties imposed upon an attorney in society.  The “Preamble” contains the concession that although certain “rules” for lawyers’ conduct are contained therein, many difficult “issues” arise which can only be resolved in the attorney’s “discretion,” guided by “sensitive, professional and moral judgment.”  In defining the “scope” of the Rules, the “Preamble” further contains disclosure that certain “rules” containing the term “may” are indeed permissive, and are not a topic for “disciplinary action” against the lawyer.  In further defining the “scope,” the “Preamble” reflects the conclusion that the “comments” underlying a rule “do not add obligations to the rules,” insofar as many such comments contain the word “should” as opposed to “must.”   Nonetheless a simple review of the Rules reveals repeated examples of mandatory conduct and mandatory directions contained in the comment sections.

Rather than containing minimum standards as under the prior Code, the new Rules do not necessarily “create any presumption” that “a legal duty has been breached” by a lawyer who arguably violates the Rules.  A rule is defined as providing a “just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority” without implying that an opponent in a legal proceeding “has standing to seek enforcement of the rule.”

Any criticism of the ambiguity contained in the new Rules is met with the observation that over 90 percent of the states have adopted the Model Rules in one form or another as an effective basis for administration of discipline.

Unintended Consequences?

Many observers nonetheless conclude that the wholesale (albeit carefully studied) adoption of a pre-built set of standards, often at odds with Ohio’s established “law of lawyering,” creates questions of interpretation, enforcement, and the likely need for future amendments.

The adoption of bright line rules, perhaps without the opportunity for full reflection upon their applicability to Ohio’s legal tradition, results in the creation of new obligations never before imposed in Ohio.  Now, for example, a “sexual relationship” between a lawyer and a client is always forbidden unless it pre-existed the creation of the client-lawyer relationship.  Such a hard line approach to a difficult issue is not followed in all states.  In fact, the Bar of the State of Florida specifically rejected consideration of a similar standard, in part based upon opposition to a bright line rule from the Florida Association of Women Lawyers.  In a presentation of the issue before the Board of Governors of The Florida Bar in 2006-07, FAWL repeatedly expressed its opposition to adoption of such Rule.

The established manner of communicating with a client, which obviously varies with the interests, capacity, and emotions of a particular client, are now purportedly regulated in a far more specific fashion.  Pursuant to Rule 1.4 an attorney is required (“shall do”) to reply to a client’s request for information, to keep a client informed about the status of a legal matter, and to consult with a client about the specific means to accomplish a client’s objectives.  Although all such duties under the cited rule essentially only require “reasonable” compliance, the “comment” following the rule cautions the attorney that a client should “have sufficient information to participate intelligently” in decision making.  A litigation attorney is cautioned to “explain the general strategy and prospects of success” and to “consult the client on tactics” under certain circumstances.  It is fair to say, regardless of the circumstances, the Rules reflect an effort to mandate specific communication and education of clients, despite the fact that “one size” obviously “does not fit all.”

Although perfected client communication is undoubtedly a laudable goal, what explains the need for new explicit standards?  The caution to attorneys to consider the duty to communicate with a client more carefully undoubtedly urges compliance with an appropriate aspirational goal.  Nonetheless, it is difficult to imagine a Certified Grievance Committees or the Office of Disciplinary Counsel prosecuting an attorney for violation of Rule 4.1(a) except under the most egregious circumstances.  One can only conclude that the ABA committee which proposed the language, and the task force that recommended adoption, concluded that attorneys will pay greater attention to such advice if delivered in the form of a “rule.”

Various provisions of the Rules result in potential confusion where newly-identified duties to third parties are defined separately and apart from long recognized and established duties to clients.  Rule 2.3 specifically refers to a lawyer providing “an evaluation” of a legal matter to a third person other than the client, quite remarkably.  The lawyer is cautioned not to provide such advice if it is “likely to affect” the true client’s interests “materially and adversely.”  Attorneys can take some comfort in the concession contained in the “comment” to Rule 2.3 that providing guidance to third parties “involves a departure from the normal client-lawyer relationship.”  Indeed.

Trust Account Proceeds Claimed By Third Parties

A brief consideration of off-the-record comments by disciplinary authorities, members of the model rules task force, as well as practitioners points out the uncertainty unleashed by adoption of Rule 1.15(d) concerning attorney trust accounts.  Although case law provided some guidance with respect to reasonable duties to notify and negotiate with third parties, the new rule, by specific language, appears to instruct attorneys with respect to duties to third parties which often override the traditional uncompromised obligations to the client.

The fuse was lit with the issuance of a nonbinding, advisory opinion by the Board of Commissioners on Grievances and Discipline, Op. 2007-7, on Dec. 7, 2007.  In reply to an inquiry concerning the proper application of new Rule 1.15, the lawyers of Ohio have been advised that their role as an unflinching advocate for their individual client is indeed compromised as a result of obligations to third parties.  Pursuant to Rule 1.15, which generally deals with the topic of attorney trust accounts, a lawyer is required to promptly notify third parties upon receipt of funds on behalf of a client in which a third party may claim an interest. (Rule 1.15(d)).  As explained in the comments to the Rule, Ohio now adopts a standard indicating that “a lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client.”  Indeed, the lawyer is now apparently held to a clear ethical duty to oppose his client with respect to certain distributions of the proceeds of a case settlement, for example.  Further, “in such cases when the third-party claim is not frivolous…the lawyer must refuse to surrender the property to the client until the claims are resolved.”  References are made to a lawyer’s efforts to “arbitrate a dispute” between a client and a third party, including an ultimate obligation (reflected in the Board of Commissioners’ opinion) to perhaps file an interpleader action concerning such funds (in which the lawyer clearly could not represent his or her own client!).  The Board of Commissioners further advises:

“Ideally, a lawyer will try to resolve any known disputes between a client and a third person before disputed funds come into the lawyer’s possession.  But, when a dispute arises as to funds in a lawyer’s possession, a lawyer should encourage the client and the third person to resolve the dispute through discussion.  If appropriate, a lawyer may suggest to the client and the third person that they mediate or arbitrate the dispute.  A lawyer should not unilaterally assume to arbitrate a dispute between a client and a third person.  If efforts among the client, the third person, and the lawyer do not resolve the dispute and there are substantial grounds for the dispute, a lawyer may file an interpleader action asking a court to resolve the dispute.”

It has been argued that the new Rule, coupled with the “advice” contained in Opinion 2007-7, should cause attorneys to avoid or delay receipt of funds potentially owed to third parties, insofar as his or her duties to that third party dramatically shift upon receipt of those funds in a trust account.  Some attorneys have now concluded they must expedite and conclude negotiations with third-party claimants in advance of receipt of settlement proceeds, an artificial distinction by any appropriate measure.

One member of the model rules task force, when advised of the potential reliance of ostensibly subrogated insurance providers upon disciplinary rules to torment attorneys advocating for plaintiffs in injury cases, was unequivocal in commenting, “If attorneys think they have duties to third parties, which are contrary to duties to their own clients, that conclusion is just [erroneous].”  (Indeed, the term used by the task force member was far more colorful.)  When one of the many individuals and committee members from around the state responsible for enforcing the Rules was specifically asked about the above-cited Board of Commissioners opinion, the individual stated an interpretation of the rule at all odds with the interpretation which has been given in the Board of Commissioners opinion.  The individual commented that “there was no intent to change the procedure most lawyers already followed” and  there is “no requirements have outside mediation involvement except in rare instances.”  A new rule.  An unlikelihood of enforcement.  Yet a troubling concern to attorneys aggressively representing personal injury plaintiffs in relation to third party lien claimants.

For what it is worth, the comment section to Rule 1.15 reflects the concession that the new Rule replaces a former disciplinary rule “which is silent on the handling of property belonging to third persons.” A wholesale new obligation is thereby imposed upon attorneys, an obligation foreign to the best interest of their own clients, which can result in the filing of an interpleader action in which the lawyer is deprived of the right to even represent a client for which the lawyer has advocated perhaps for months or years. This form of duty to a third party is now, for the first time, an ethical mandate which can provide a basis for discipline.  As an ethical mandate, it is effectively a condition upon the continued right to practice law. It could provide the basis for a civil remedy for a third party claimant.

Perhaps as an effort to deal with the fashionable, yet unjust, criticism that our profession falls short of meeting its obligations to society as a whole, the ABA Model Rules (and indeed the form of those Rules adopted in Ohio) arguably weaken the unflinching obligation of an attorney to fight for the best interest of a client.  The new Rules in the most positive sense, consist of an effort to inspire, uplift, and urge lawyers to reach aspirational ideals, yet in a fashion which is often inconsistent with the fundamental duty of advocacy as a professional.  The new blur between aspirational and mandatory standards give rise to this ambiguity.  A strict construction of such the Rules demonstrates the defects, in a fashion which would impress even the 18th president of the United States, Brown County, Ohio, native Ulysses S. Grant.

Gary J. Leppla (a 1975 graduate of Ohio State, and a 1978 graduate of Ohio State College of Law), born in Cleveland and raised in Dayton, has practiced law in Montgomery County since 1978. Leppla is the principal attorney at Leppla Associates, heading a litigation practice firm, emphasizing business and property claims, injury and malpractice claims, land use representation, and the defense of attorneys in disciplinary and civil matters. Leppla is past president of the Dayton Bar Association, is president-elect of the Ohio State Bar Association, and will assume office as president on July 1, 2008.  He is currently a member of the Board of Trustees of the Ohio Bar Liability Insurance Company, the Ohio State Bar Foundation, and the Ohio Legal Assistance Foundation. He and his wife, Patricia, reside in rural German Township outside of Dayton, where they have raised three children:  Dominic (The Ohio State University, B.A. 2004), Miranda (OSU Moritz College of Law Class of 2010), and Philip (The Ohio State University, B.A. 2008).