Ethics for Ohio Personal Injury Lawyers
Conflicts of Interest
Attorneys owe duty of loyalty to be free from conflicts of interest that arise from the responsibilities to another client, a past client or certain third parties. In Ohio, this is governed by several rules of Professional Conduct. The two main rules are: Ohio Rule of Prof. Cond. 1.7 Ohio Rule of Prof. Cond. 1.10
Ohio Rule of Professional Conduct 1.7 – Conflicts of Interest
Rule 1.7(a) A lawyer’s acceptance or continuation of representation of a client creates a conflict of interest if either of the following applies: (1) the representation of that client will be directly adverse to another current client; (2) there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by the lawyer’s own personal interests.
- Lawyer represents doctor in car accident that is accused of medical malpractice while also representing injured patient in seeking compensation from medical provider and doctor’s employer.
- Lawyer representing both an injured driver and injured passenger of a motor vehicle accident may involve materially adverse interests where the passenger seeks recovery from the injured driver.
- Lawyer is attempting to represent two clients both of who may have been at fault for an accident in different ways.
- If insurance companies provide a lawyer in accordance with policy, who does the lawyer represent?
Ohio Rule of Professional Conduct 1.10 – Conflict Imputed to Firm
Rule 1.10(a) While lawyers are associated in a firm, none of them shall represent a client when the lawyer knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. Make sure no other lawyers in partnership have a conflict. Any conflicts of interest present in one lawyer’s representation is imputed to that lawyer’s firm under the Ohio Rules of Professional Conduct unless exempted. For particularly large firms, they might involve other firm clients such as: doctors, nurses, medical provider employees, tortfeasors, etc. Thorough conflict checks should be conducted prior to engaging with personal injury representation.
Ohio Rule of Prof. Cond. 1.5 – Fee Provisions
Contingency fees are not prohibited by the Rules of Professional Conduct in personal injury cases, however, all fees must be reasonable under all circumstances. The typical personal injury engagement will be a contingency fee of 33 and ⅓% of gross settlement amount. The fee agreement must be in writing, signed by the client, and state the method of how the fee will be determined (percentage). Also, in Ohio, lawyers are required to specify what event will trigger the fee (settlement, trial, appeal, etc.), whether expenses will be deducted, and expenses the client will be responsible before irrespective of whether they prevail.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by division (d) of this rule or other law. (1) Each contingent fee agreement shall be in a writing signed by the client and the lawyer and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement shall clearly notify 24 the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Be sure to request the client place funds in your IOLTA account to cover the costs of investigating and evaluating claims or litigation.
Referrals and Joint Representation
Remember, personal injury cases are exceedingly complicated so if the case is beyond your depth, considering referring a case to an experienced attorney or firm. If you enter into a fee splitting agreement with a lawyer that is not part of the same law firm, it is critical to do so in accordance with Ohio Rules. Fees can be divided if: (1) the division of fees is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation and agrees to be available for consultation with the client; (2) the client has given written consent after full disclosure of the identity of each lawyer, that the fees will be divided, and that the division of fees will be in proportion to the services to be performed by each lawyer or that each lawyer will assume joint responsibility for the representation; (3) except where court approval of the fee division is obtained, the written closing statement in a case involving a contingent fee shall be signed by the client and each lawyer and shall comply with the terms of division (c)(2) of this rule; Also be sure to have the client sign again on any disbursement of funds from IOLTA accounts indicating the amount of attorneys’ fees and the attorney or firm that was paid. Our team stands by for referrals in Ohio, Florida, Georgia or serious third-party insurance litigation in Michigan. Call 419-900-0955 or email us at firstname.lastname@example.org.
Ohio Rule of Prof. Cond. 1.15 – Safekeeping of Client Funds
Opinion 2007-7: A lawyer’s duty of safekeeping funds in the lawyer’s possession extends not only to clients but also to third persons. Proceeds of a personal injury settlement or judgment are a common example of funds that come into a lawyer’s possession during representation of a client for which disputes may arise. The opinion states that “[t]hird parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third party-claims against a wrongful interference by the client.” Medicare and medicaid requires the liens to be protected.
Ohio provides discharged attorneys a right to recover “quantum meruit” damages, regardless of whether there was cause for discharge based on the holding in Fox & Associates Co., L.P.A. v. Purdon. Damages for client breaches of fee contracts is not the entire contract amount – only the amount commensurate with services rendered. Fox & Associates Co., L.P.A. v. Purdon: “When an attorney is discharged by a client with or without just cause, and whether the contract between the attorney and client is express or implied, the attorney is entitled to recover the reasonable value of services rendered the client prior to discharge on the basis of quantum meruit.”
If a personal injury lawyer is discharged without cause, the client may be required to pay the attorney the reasonable value of services actually rendered. Even in contingency fee cases, keep track of all time spent on client accounts in the event the client terminates the relationship and quantum meruit attorney;s fees are sought. As always, all fees must be reasonable.
Upholding Client Confidentiality
Ohio Rule of Prof. Cond. 1.6 – Confidentiality. (a) A lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by division (b) or required by division (d) of this rule. Watch out for inadvertent attorney-client privilege waivers that might occur when meeting with client and potential witnesses of the accident or their family members or loved ones
Diminished Capacity Exception in Ohio
In cases where you reasonably believe that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest, you are authorized to take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. Information relating to the representation of a client with diminished capacity is protected by Rule 1.6, however, when taking protective action lawyers have implied authorization to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
Use care and diligence when settling as with personal injury settlements, Defendants regularly seek varying levels of confidentiality as a necessary condition of the settlement.
Other Important Ethical Considerations for Personal Injury Attorneys
Unfortunately, with serious injury cases in particular, you may run into a situation where your client has diminished capacity due to their injuries.
Ohio Rule of Prof. Cond. 1.14 – Client With Diminished Capacity.
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to division (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
Ohio Rule of Prof. Cond. Rule 7.1 – Communication Regarding a Lawyer’s Services
As with most areas of practice, personal injury law does involve a significant amount of advertising and is an area of law where it is really important to keep advertising in accordance with the rules. Verdicts and settlement numbers are common. A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.
Rule 7.3 – Solicitation
Similar to advertising, solicitation is also relatively widespread in the personal injury practice. Mailings are used in some markets to those injured victims (which in our experience should be disfavored but is not necessarily unethical in Ohio). Any solicitations must comply with Rule 7.3. For personal injury cases specifically, Rule 7.3(e) states that “if a communication soliciting professional employment from anyone is sent within thirty days of an accident or disaster that gives rise to a potential claim for personal injury or wrongful death, the following “Understanding Your Rights” shall be included with the communication.” See Exhibit B for the most recent Ohio Rules of Professional Conduct “Understanding Your Rights” disclosure.
Dennis P. Sawan
Licensed in Ohio and Georgia
Christopher A. Sawan
Licensed in Ohio and Michigan