Page 36 - December 2019 Bar Journal

COLUMNETHICS PERSPECTIVE

ETHICAL CONSIDERATIONS

FOR OFFICERS OF THE COURT

Amanda A. Barreto & Mark M. Mikhaiel

ourt News Ohio’s website often circumstances. Malpractice occurs when an THE GRIEVANCE PROCEDURE
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presents cases that focus on attorney fails to “(1) treat a case professionally; When an aggrieved client has an attorney
ethical violations, and should or (2) fulfill a duty implied into the employment complaint, he or she can file an ethical grievance
remind practicing attorneys that law; or (3) exercise the degree of skill or care with either the certified grievance committee
Cwe should always be mindful of exercised by members of the same profession of the local bar association or with the Office
the Ohio Rules of Professional Conduct (formerly practicing in the same locality.” of Disciplinary Counsel of the Supreme Court
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the Ohio Code of Professional Responsibility). The standard for legal malpractice is of Ohio. Regardless of whether a local bar
These Rules set the minimum ethical standards clear. To establish a cause of action for legal committee or the Supreme Court is involved,
for lawyers in their relationship with their clients, malpractice under Ohio law, a plaintiff must the complaint will be investigated, and the
obligations to the court and opposing parties, show (1) that the attorney owed a duty or governing body will decide whether to prosecute
as well as their obligations to the public. By obligation to the plaintiff, (2) the attorney any ethical violations to the Supreme Court.
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adhering to the Rules, practitioners, their clients, breached that duty or obligation to the The CMBA’s Certified Grievance Committee
and society at large will be well represented plaintiff and failed to conform to the standard is scheduled to meet twice a month to
and protected by those of us who are Officers required by law, and (3) that there is a causal assign members with investigations, review
of the Court. connection between the conduct complained submitted investigation reports, decide whether
The ethical obligations of an Ohio lawyer of and the resulting loss. 5 ethical violations occurred, and determine
to her client are to be competent, diligent and It is hornbook law that such “violations whether formal complaints should be made.
loyal, and to communicate with her client about of the ethical rules may sustain a claim for Investigations are assigned to individual
the representation and the matter for which the malpractice, when supported by expert Committee members and can include witness
lawyer was engaged, and to keep confidential testimony. Expert testimony is required to interviews, requests for documents, and even
and not to misuse information related to the support the allegations except where it is so depositions. The investigation details are then
representation, except as required or permitted patently obvious that a violation occurred.” 6 memorialized and presented to the Committee
by the Rules. The Rules identify what ought to The violation of a rule of professional as a whole. If the Committee determines that
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be done, what is fair, what is right, and what is conduct, disciplinary rule, ethical standard, there is substantial and credible evidence of an
best course of conduct. Absent the Rules, and etc. is a fact like any other fact. To the extent ethical violation, the Committee can prepare a
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without a regulatory framework to remind that it caused damages, under Ohio law, it formal complaint to the Ohio Supreme Court’s
us that we are accountable for the judgments is a fact that would support a claim of legal Board of Professional Conduct. The Board then
we make and actions we take, there could be malpractice. Where a rule violation causes considers evidence presented at a hearing and
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a totally individualistic ethical standard while damage, there exists legal negligence. 9 makes a recommendation of sanctions to the
practicing law. Paragraph 20 of the preamble to the Rules, Supreme Court.
states in part: “The Rules do establish standards It is not the purpose of the Committee to
VIOLATION OF THE ETHICAL of conduct by lawyers. A lawyer’s violation of a determine whether a lawyer is liable for legal
RULES MAY LEAD TO CLAIMS OF rule may be evidence of breach of the applicable malpractice, but only to investigate allegations
MALPRACTICE standard of conduct.” of misconduct and make recommendations
A breach of the Rules of Professional Conduct Yet the Ohio Supreme Court held that regarding whether the allegations should be
may well give rise to a claim of legal negligence. the professional rules are “relevant, but not referred for sanctions. The Committee serves
The term “malpractice” refers to professional determinative of, the propriety of an attorney’s an important purpose: to give clients a safe
misconduct, i.e., the failure of one rendering conduct for purposes of a [tort].” Fred Siegel and confidential place to present grievances
services in the practice of a profession to exercise Co., L.P.A. v. Arter & Hadden. Thus, violations for review. While it is possible for a grievant to
the degree of skill and learning normally applied of the Rules of Professional Responsibility receive a benefit or settlement from his or her
by members of that profession in similar constitute a basis for malpractice liability. 10 lawyer as a result of an investigation, the greater

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