Page 31 - December 2019 Bar Journal

FEATURE
COLUMN ETHICS PERSEPECTIVESPECTIVE
ETHICS PER COLUMN

Her undisclosed and unwaived conflict a client in a grand jury investigation. Her How will the Court divide this baby?
COLLATERAL DAMAGE between her “real” client, Penn State, and the conflict should have been “obvious” and any Sometimes, a question from the bench
suggests which direction the judge is leaning.
executives resulted in the quashing of charges
“seasoned attorney” should have “perceive[d]
th
LAWYERS MIRED IN PENN STATE (perjury, conspiracy, obstruction of justice) the danger in her representation of all of Law360’s September 10 article notes one
justice asked Disciplinary Counsel “What is
these clients.” Law360, (June 4, 2019).
exposing them to lengthy prison sentences.
The Board concluded, however, that
Instead, Schultz and Curley pleaded guilty to
possibly to be gained by the public censure
SANDUSKY SCANDAL a single misdemeanor count of endangering her conduct was not dishonest, so neither you request?” Good question.
the welfare of a child. President Spanier lost suspension nor disbarment was necessary. So there you have it. Both Frank Fina
his trial on the same charge, but won reversal The Board wants her “publicly censured” and Cynthia Baldwin were highly respected
on appeal. equivalent to Ohio’s public reprimand. public servants. Hearing Panels in both cases
Baldwin’s downside appears to be capped. At the September 2019 Supreme Court recommended dismissal. If you were on the
Interestingly, in October 2018, the Board argument, rare in cases involving only public Pennsylvania Supreme Court, would you cut
Panel that heard her case, like the Panel that censure, Disciplinary Counsel argued, “Her them a break?
heard Fina’s, recommended dismissing the misconduct, including basically a betrayal of Ladies and gentlemen, place your bets.
claims. But the full Board disagreed, finding her clients, is severe, so the punishment must
a Rule 1.1 (competency) violation: be severe.” Law360, (Sept. 10, 2019).
Respondent failed to properly advise Baldwin’s side of the story is that her Brian Toohey, a retired Jones Day partner, serves
her clients and advocate on their clients lied to her. Her counsel argued that as an expert witness and advises clients on legal
behalf, and failed to exercise the legal lawyers must rely on information from ethics issues.He edits Marc L. Swartzbaugh
knowledge, skill, thoroughness and clients to determine if a conflict exists. In and Arthur Greenbaum, “Ohio Legal Ethics
preparation reasonably necessary for the other words, absent some indication of Law Under the Rules of Professional Conduct”
representation ... The Legal Intelligencer unreliability, lawyers may take a client’s (Copyright 2019 Jones Day), available at http://
(Online), (June 3, 2019). information at face value. We need not kb.osu.edu/handle/1811/61287. A CMBA
The Board noted that Baldwin never assume our clients are lying. See, e.g., Ohio member since 1980, Brian can be reached at
practiced criminal law and never represented Rule 3.3, Comment [8]. (216) 496-4363 or bftoohey@gmail.com.

You have a situation.
We have a strategy.

Because the
Court of Public Opinion
is always in session.

Bruce Hennes
Thom Fladung

Terminal Tower | 50 Public Square, Suite 3200 | Cleveland, Ohio 44113 Nora Jacobs
AES Building | 388 S. Main St. | Suite 400 | Akron, Ohio 44311 Howard Fencl
www.crisiscommunications.com 216-321-7774 Stephanie York

DECEMBER 2019 CLEVELAND METROPOLITAN BAR JOURNAL | 31