Dayton Bar Association. Annual Estate Planning, Trust & Probate Law Institute Friday, March 11, 2016 (6.0 hours) AGENDA

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1 1 Dayton Bar Association Annual Estate Planning, Trust & Probate Law Institute Friday, March 11, 2016 (6.0 hours) AGENDA 8:30-9:30 a.m. Ethics on the Edge: Hot Topics; Diminished Capacity What You Should Know, Karen Rubin, Esq., Thompson Hine, Cleveland 1.0 hour Professional Conduct 9:30-10:30 am. Elder Financial Abuse, Amy L. Kurlansky, Esq., Cincinnati 1.0 hour 10:30-10:45 a.m. Break 10:45-11:45 a.m. Probate Case Law Update: Nancy Miller, Magistrate, Lucas County Probate Court 1.0 hour 11:45 a.m.- 12:45 p.m. Lunch 1:00-2:00 p.m. Montgomery County Probate Court Hour of Power : Judge Alice McCollum, Mag. David Farmer and Mag. Joseph Gallagher 1.0 hour 2:00-2:15 p.m. Break 2:15-3:15 p.m. Password Estate Planning and Administration, Robert Ellis Esq. 1.0 hour 3:30-4:30 p.m. Pot-Shots at Gun Trusts and Firearms Law Update, Sean Culley, Esq., Green & Green, Dayton 1.0 hour

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3 Materials Index Ethics on the Edge: Hot Topics; Diminished Capacity What You Should Know Karen Rubin, Esq., Thompson Hine, Cleveland page 3 Elder Financial Abuse Amy L. Kurlansky, Esq., Cincinnati page 38 Probate Case Law Update Nancy Miller, Magistrate, Lucas County Probate Court page 101 Montgomery County Probate Court Hour of Power Judge Alice McCollum, Mag. David Farmer and Mag. Joseph Gallagher page 245 Password Estate Planning and Administration Robert Ellis Esq. page 287 Pot-Shots at Gun Trusts and Firearms Law Update Sean Culley, Esq., Green & Green, Dayton no materials provided

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5 3 Karen E. Rubin Counsel Legal Ethics, Professional Responsibility and the Business of Law Business Litigation Overview Karen is a member of Thompson Hine s Business Litigation practice group, focusing her practice on a wide variety of litigation issues. In addition, Karen practices, teaches and writes in the area of professional responsibility, including malpractice and legal ethics. She is chair of the Cleveland Metropolitan Bar Association's Certified Grievance Committee, which investigates allegations of attorney misconduct. Contact Information 3900 Key Center 127 Public Square Cleveland, Ohio Direct: Fax: Education Cleveland-Marshall College of Law, J.D., 1985, editor in chief,cleveland State Law Review, ; co-editor in chief, Journal of Law and Health, Cleveland State University, B.A., 1981, magna cum laude Karen is also chair of the Ohio State Bar Association's Professionalism Committee, and chair of its ethics opinions subcommittee. The Committee considers and acts on the wide range of matters affecting legal ethics and professional conduct. The subcommittee issues ethics opinions interpreting the Ohio Rules of Professional Conduct. Karen is an adjunct professor of law at Cleveland-Marshall College of Law, teaching legal ethics. She also is co-editor of Thompson Hine s legal ethics blog, The Law for Lawyers Today. Selected Presentations "Ethics for Ohio Marketing Professionals: Social Media and More," Legal Marketing Association, March 2015 Confidentiality and Client Data Security, National Business Institute, December 2014 "Recognizing and Managing Conflicts of Interest," Case Western Reserve University Business and Law Colloquium, November 2014 Multi-jurisdiction Practice, Corporate Family Tree Ethics Issues, Ohio State Bar Ass'n Webcast, September 2014 Distinctions AV Preeminent Rated by Martindale-Hubbell

6 43/6/2016 Agenda Ethics on the Edge: Two Hot Topics and Diminished Capacity What You Should Know. Karen E. Rubin Thompson Hine, Cleveland Presentation to Dayton Bar Ass n Estate Planning, Trust & Probate Law Institute March 11, 2016 New disciplinary opinion on conflicts in representing executors; New ethics opinion on soliciting clients at seminars. Agenda Clients with diminished capacity what are your ethical obligations? Conflict warning Cinncy. Bar Ass n v. Robertson, Ohio-654 (Oh. S. Ct. Feb. 25, 2016) Acted as counsel for executor and agreed to represent executor individually. 1

7 53/6/2016 Robertson conflict issue To the extent the claims of the [client s] other family members implicate[d] potential wrongdoing that would diminish the estate, Respondent [could] not simultaneously discharge his duty of undivided loyalty to the estate while undertaking a similar duty to the alleged wrongdoer. Accordingly, the parties stipulated and the board found that [the dual representation] violated R. 1.7(b), prohibiting conflicts of interest. O.R.C (A) Absent express agreement to contrary, att y who performs legal services for fiduciary, by reason of the att y performing those legal services for the fiduciary, has no duty or obligation in contract, tort, or otherwise to any third party to whom the fiduciary owes fiduciary obligations. (B) As used in this section, "fiduciary" means a trustee under an express trust or an executor or administrator of a decedent's estate. ORPC 1.7(b) No representation of conflicting interests unless: lawyer will be able to provide competent and diligent representation; and client gives informed consent????? Here is the issue that struck me who are the affected clients who can waive the conflict? Under RC the attorney owed no obligations to the beneficiaries; hence they were not his clients. The only clients then were the husband and wife is the Court saying that the conflict issue could have been cured if he had secured their written consent; so that if one person is the [fiduciary] and is being sued in both a representative and individual capacity, she or he must simply provide a written waiver in both capacities? 2

8 63/6/2016 Robertson fee issue Took fees before closing estate and getting court approval; Inaccurately reported amt. of fees pd.; R. 3.4(c) & 8.4(d) violated. Impact of Robertson Will it tend to erode protection of O.R.C ? Will it create confusion about need for or ability to shelter behind conflict waivers? Solicitation of Clients at Seminars Op (Ohio Bd. Prof l Cond. Aug. 7, 2015) Direct In-person Solicitation of Prospective Clients at Seminars No in-person, live telephone or realtime electronic solicitation of clients Exceptions ORPC 7.3(a) lawyers; family members; close personal friends; prior prof l relationship w the lawyer. 3

9 73/6/ opinion on handing out brochures OK: Brochures in advertising bags; mailing general brochures to general public; soliciting with direct mail that complies with rule ( Advertising Only ) Not OK: Personally handing out material on a street corner, at a fair, at a church festival. With information available near the exit, attendees have the option either to stop or to simply walk away. [The presenter] may refer to the availability of brochures during the seminar, but neither the lawyer nor the lawyer s personal representatives may personally distribute the materials. Meet with prospective clients at the seminar? Can t meet oneon-one afterwards to discuss personal legal needs; Can t answer specific questions of individual attendees. Call my office. Clients with Diminished Capacity U.S. adults affected by mental health condition or disorder 80% 20% Affected Not Affected 4

10 83/6/2016 The 65+ population is growing -- fast The very old: fastest growing elderly demographic 20% 18% 16% 14% % 10% 8% 6% Millions % 2% 0% Dementia Clinical syndrome; loss of cognitive function sufficient to impair carrying out everyday activities. Does not imply specific cause or pathological process. Wide range of diseases affecting the brain can cause dementia some completely reversible. Alzheimer s Disease Most common cause of dementia, accounting for 60-70% percent of cases. Prevalence doubles every five years: 1% of 60-year olds; 30-45% of 85-year-olds; 5 million now; 16 million by

11 93/6/2016 Ethics Considerations Mrs. X s two adult children visit Lawyer. Please help Mom understand she needs someone to help her with her basic needs. Children, beneficiaries of will, express concern that Mrs. X will dissipate assets. We ll pay your fee for consulting with Mom. Ethics Considerations Who is the client? Family member who called you to make the appointment? Person who is paying for your representation? Rule 1.7 cmt. [23] ABA Op Lawyer may be paid from source other than client; Client must consent; Arrangement must not compromise duty of confidentiality, loyalty or independent judgment to client. Capacity is a spectrum. If sufficient mental capacity to make informed decision, should be respected even if might be contrary to client s interest. You might disagree doesn t mean you should substitute your judgment. 6

12 3/6/ Rule 1.7(a)(2) Conflict of Interest Substantial risk that your ability to consider, recommend, carry out action will be materially limited by your responsibilities to another. Rule 1.14 Clients with Diminished Capacity Maintaining an a/c relationship that is as normal as reasonably possible; Taking protective action as necessary; Revealing confidential information (only) as necessary. Maintaining normal relationship cmt. [1] Even client with diminished capacity can reach conclusions on some matters, while needing special protection on others. Taking protective action Risk of substantial physical, financial or other harm unless action is taken; and Client cannot adequately act in the client s own interest. 7

13 3/6/ Avoiding inappropriate disclosure Limited to extent reasonably necessary to protect client s interests; Will the outside person/agency act adverse to client s interests? THANKS! Check out Thompson Hine s ethics blog: 8

14 [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cincinnati Bar Assn. v. Robertson, Slip Opinion No Ohio-654.] 12 NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO OHIO-654 CINCINNATI BAR ASSOCIATION v. ROBERTSON. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cincinnati Bar Assn. v. Robertson, Slip Opinion No Ohio-654.] Attorneys Misconduct Violations of the Rules of Professional Conduct Stayed six-month suspension. (No Submitted September 15, 2015 Decided February 25, 2016.) ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme Court, No Per Curiam. { 1} Respondent, David Franklin Robertson Jr. of Cincinnati, Ohio, Attorney Registration No , was admitted to the practice of law in Ohio in Relator, Cincinnati Bar Association, has charged him with professional misconduct arising out of his representation of a client in the probate court of Hamilton County. Based on the parties stipulations and the evidence presented at

15 SUPREME COURT OF OHIO 13 the panel hearing of the Board of Professional Conduct, the board recommends that we sanction him with a stayed six-month suspension. Neither party has filed objections to the board s report, and based on our independent review of the record, we accept the board s findings of misconduct and agree with the recommended sanction. Misconduct { 2} In July 2012, Deborah Lewallen retained Robertson to represent her as the executor of her father s estate. Three of Lewallen s siblings and seven of the decedent s grandchildren who were also beneficiaries of the estate thereafter attempted to remove Lewallen as executor and filed objections to the estate inventory, arguing that Lewallen and her husband had improperly removed items from the estate. Upon Lewallen s request, Robertson also agreed to defend her and her husband against her family members objections and attempt to remove her as executor. { 3} Robertson, however, failed to explain to Lewallen that his representation of her and her husband in their personal capacities created a conflict of interest. Specifically, the board found that [t]o the extent the claims of the Lewallen s [sic] other family members implicate[d] potential wrongdoing that would diminish the estate, Respondent [could] not simultaneously discharge his duty of undivided loyalty to the estate while undertaking a similar duty to the alleged wrongdoer. Accordingly, the parties stipulated and the board found that Robertson s dual representation of Lewallen in her individual capacity and in her role as fiduciary of the estate violated Prof.Cond.R. 1.7(b) (prohibiting a lawyer from accepting or continuing representation of a client if a conflict of interest would be created, unless the affected client gives informed consent in writing). { 4} The family members eventually withdrew their request to remove Lewallen, and due to the extensive litigation, Robertson filed applications with the probate court for partial payment of attorney fees. A local rule, however, required 2

16 January Term, that attorney fees for the administration of an estate be paid at the time of the fiduciary s final account and with prior court approval. Accordingly, the judge held Robertson s applications in abeyance until the estate was ready to be closed. { 5} Notwithstanding the local rule and the court s order, Robertson asked Lewallen for payment of his fees, with the understanding that the estate would eventually reimburse her when it was terminated. Between March and July 2013, she paid $17,820 to Robertson and $5,500 to an attorney who had assisted him. However, in October 2013, the court awarded Robertson only $14,000 in fees for activities conducted on behalf of the estate. Prior to filing the final account, Robertson endorsed an estate check for $14,000 and then delivered those funds to Lewallen. When he filed the final account, he did not report that Lewallen had paid $23,320 in attorney fees and, instead, reported only that $14,000 in attorney fees had been paid. { 6} The parties stipulated and the board found that by accepting attorney fees that had not yet been approved by the court, as required by local rule, Robertson violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal). Similarly, the board found that by accepting attorney fees without court approval and by filing documentation in the court that inaccurately reported the amount of attorney fees he had received, Robertson also violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). { 7} We agree with these findings of misconduct. Sanction { 8} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, the sanctions imposed in similar cases, and the aggravating and mitigating factors listed in Gov.Bar R. V(13). 3

17 SUPREME COURT OF OHIO 15 { 9} In this case, the board concluded that the following mitigating factors were applicable: Robertson had no prior discipline; he made restitution by reimbursing Lewallen the additional $9,320 in fees that she had paid to him and his associate; and he fully cooperated in the disciplinary process. See Gov.Bar R. V(13)(C)(1), (3), and (4). In addition, the board acknowledged that despite the local rule, some of Robertson s courtroom discussions with the judge created ambiguity regarding how to bill for his time. The board found no aggravating factors. { 10} To support its recommended sanction, the board cites Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879, 965 N.E.2d 268. In that case, we imposed a stayed six-month suspension on an attorney who (1) had a conflict of interest by representing both a proposed ward and the ward s niece in a guardianship proceeding, (2) engaged in conduct that was prejudicial to the administration of justice by using her power of attorney over the proposed ward s affairs to pay her own attorney fees, without first obtaining court approval, and (3) charged a clearly excessive fee. In sanctioning the attorney, we emphasized that no matter how well-intentioned an attorney s motive is, the professional conduct rules prohibit representation of clients with adverse interests, unless certain exceptions apply, including informed consent of each affected client. Id. at { 11} We agree with the board that Parisi is instructive. Similar to the attorney in that case, Robertson s dual representation resulted in a conflict of interest, and he accepted attorney fees without court approval. Therefore, a similar sanction is warranted here. And as the board noted, no matter how well-intentioned Robertson was, he should have recognized that he had created a conflict not only by accepting representation of Lewallen in her individual capacity after having already agreed to represent her as fiduciary of the estate but also by spending a significant amount of time defending against the allegations asserted by the estate s 4

18 January Term, other beneficiaries. See also Disciplinary Counsel v. Dettinger, 121 Ohio St.3d 400, 2009-Ohio-1429, 904 N.E.2d 890 (imposing a stayed six-month suspension on an attorney who borrowed money from a client without disclosing the inherent conflict of interest or advising the client or upon the client s death, his executor to seek independent counsel). Conclusion { 12} Having considered the ethical duties violated, the mitigating factors, the absence of any aggravating factors, and the sanctions imposed in comparable cases, we accept the board s recommended sanction. David Franklin Robertson Jr. is hereby suspended from the practice of law for six months, with the suspension stayed in its entirety. Costs are taxed to Robertson. Judgment accordingly. O CONNOR, C.J., and PFEIFER, O DONNELL, LANZINGER, KENNEDY, FRENCH, and O NEILL, JJ., concur. Vincent A. Salinas Sr., Howard M. Schwartz, and Edwin W. Patterson III, General Counsel, for relator. Kegler, Brown, Hill & Ritter Co., L.P.A., and Jonathan E. Coughlan, for respondent. 5

19 17 BOARD OF PROFESSIONAL CONDUCT 65 SOUTH FRONT STREET, 5 TH FLOOR, COLUMBUS, OH Telephone: Fax: PAUL M. DE MARCO CHAIR WILLIAM J. NOVAK VICE- CHAIR OPINION Issued August 7, 2015 RICHARD A. DOVE DIRECTOR D. ALLAN ASBURY SENIOR COUNSEL HEIDI WAGNER DORN COUNSEL Direct In-person Solicitation of Prospective Clients at Seminars SYLLABUS: A lawyer may present a legal seminar to prospective clients and may make brochures and law firm information available near the exit of the seminar. A lawyer may not meet contemporaneously with prospective clients who attend the legal seminar to answer legal questions, even if the attendees sign up to do so in advance. An exception exists for lawyers providing pro bono legal services. Finally, the prior professional relationship exception under Prof. Cond. R. 7.3(a) does not apply to prospective clients who are employees of an existing organizational client of the presenting lawyer. QUESTIONS PRESENTED: 1) May a lawyer present a legal seminar to prospective clients and provide brochures and folders with firm information at the entrance or exit of the seminar? 2) May a lawyer stay after a seminar to answer follow-up questions of attendees or meet with attendees who sign-up to meet with a lawyer in advance of the seminar? 3) May a lawyer, during the course of presenting at a firm-sponsored seminar, make an offer of services to attendees, all of whom are employees of the existing organizational client of the firm? Does a prior professional relationship exist in that situation? OPINION: A lawyer seeks the Board s guidance regarding direct in-person solicitation at legal information seminars. Specifically, the lawyer asks whether certain practices

20 Op comply with the in-person solicitation and written marketing rules under Prof. Cond. R. 7.3 when presenting at a seminar. Background Prof. Cond. R. 7.3 governs a lawyer s direct contact with prospective clients and prohibits in-person, live telephone, or real-time electronic solicitation of clients unless the person contacted is a lawyer, family, close personal friend, or has a prior professional relationship with the lawyer. Prof. Cond. R. 7.3(a). The rationale for the rule is to protect prospective clients from the potential for abuse and overreaching. Prof. Cond. R. 7.3, Comment [2]. Additionally, a prospective client may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate selfinterest in the face of the lawyer s presence and insistence upon being retained immediately. 1 Id. A solicitation is defined as: a communication initiated by lawyer directed to specific person and offers to provide, or reasonably understood as offering to provide, legal services. A lawyer s communication typically is not a solicitation if (a) directed to the general public billboard, internet ad, website, or commercial, (b) in response to request for information, or (c) automatically generated in response to internet search. Prof. Cond. R. 7.3, Comment [1]. Prof. Cond. R. 7.3 does not apply to communications sent in response to requests from clients or others. Prof. Cond. R. 7.3, Comment [8]. Prior to the adoption of the Rules of Professional Conduct in 2007, the Board addressed direct solicitation and advertising issues under the former Code of Professional Responsibility, including the dissemination of materials by lawyers to prospective clients, but not regarding legal seminars. See Adv. Op ; Adv. Op Following the adoption of the Rules in 2007, the Board addressed the application of the advertising rules in two opinions. Advisory Opinion addresses direct contact with prospective clients regarding text messages, and Advisory Opinion Prof. Cond. R. 7.3(a)(1) is not applicable to situations where a lawyer solicits another lawyer, as there is not a serious potential for abuse when the person contacted is a lawyer. Prof. Cond. R. 7.3, Comment [5]. As a result, this opinion does not apply to lawyers conducting seminars for other lawyers.

21 Op addresses the issue of a lawyer s advertising through a personalized letter to a prospective business client under Prof. Cond. R. 7.3(c). Neither opinion directly addresses the questions presented here. Answer to Question 1: A lawyer may present an informational legal seminar to prospective clients. The lawyer also may place law firm brochures and information near the exit of the seminar, provided the lawyer does not personally distribute the materials to attendees. Under the former Code, the Board determined that a lawyer may conduct a legal seminar and may promote or advertise a legal seminar provided the advertisement is not false, fraudulent, misleading, or deceptive. Adv. Op Under former DR 2-101(B)(3), brochures were permitted to be disseminated directly, but it was deemed improper for a lawyer, or a third party on the lawyer s behalf, to personally distribute law firm brochures at a street corner, at a booth at a fair, at a church festival, or at other similar events. Adv. Op As a result, certain methods of dissemination were deemed permissible, including placing brochures in an advertising bag with other ads for doorstep distribution, mailing brochures to the general public, mailing brochures with a direct mail solicitation letter in compliance with the rules, or placing brochures on counter displays in public places and private businesses. Adv. Op Distribution of materials at or following a legal seminar was not discussed. Although Ohio has not directly addressed the question, other ABA Model Rule states have opined on the issue of the distribution of law firm brochures and materials at seminars. In Michigan, a law firm may set up a booth outside of a seminar to market the firm, as long as the information communicated about the firm does not violate Prof. Cond. R. 7.1, 7.2, 7.3, and the attendees have the option either to stop at the booth or to walk away. Mich. Ethics Op. RI-99 (1999). In Pennsylvania, a lawyer who presents at a seminar may leave brochures and general advertising materials regarding the firm s practice for distribution to the audience. Pa. Bar Assn. Op (1990). In South Carolina, a lawyer who presents at a seminar may send letters or brochures to attendees. Only the written solicitations sent to attendees known to be in need of legal services in a particular matter must comply with Rule 7.3(c). S.C. Ethics Adv. Comm. Op (1997); S.C. Ethics Adv. Comm. Op (1991). Finally, in North Carolina, under Rule 7.3, a lawyer may provide a prospective client multiple business cards or firm brochures if requested; however, the lawyer may not provide multiple business cards or brochures to a third party for in-person solicitation on the lawyer s behalf N.C. Ethics Op. 4.

22 Op Based on the Board s prior opinions under the former Code, as well as the opinions of other ABA Model Rule states, a lawyer who presents at a legal seminar may make available law firm brochures and information at displays near the exit of the seminar. With information available near the exit, attendees have the option either to stop or to simply walk away. A lawyer presenting at the seminar may refer to the availability of brochures and firm materials during the seminar, but neither the lawyer nor the lawyer s personal representatives may personally distribute the materials. Regardless of the method of dissemination, the information must meet all of the requirements of Prof. Cond. R. 7.1, 7.2, and 7.3. This differs from the direct dissemination of materials discussed in Adv. Op Here, unlike in Adv. Op. 99-5, the lawyer will not personally distribute law firm information at the seminar. Rather, the materials will be made available for attendees to take. This is similar to a countertop display of law firm materials at a public or private business described in Adv. Op Additionally, the rules permit a lawyer presenting at a seminar to mail or attendees information or brochures about the law firm using lists of seminar attendees. However, these mailings and materials must comply with Rule 7.3 and the other Rules of Professional Conduct. Therefore, a lawyer may present a legal topic at a seminar to prospective clients and may make available law firm brochures and information at the exit of the seminar, so long as the lawyer or the lawyer s representatives do not personally distribute the information, and the information meets all requirements of the Rules of Professional Conduct. Answer to Question 2: A lawyer may not remain after a seminar to discuss personalized legal needs of attendees, even if attendees sign up to meet with the lawyer in advance of the seminar. Instead, if attendees wish to meet with the lawyer, the attendees should be directed to call the law office and schedule an appointment to meet with the lawyer, or be instructed to contact a lawyer of their choice. Under the former Code, the Board recognized that a lawyer who conducts a legal seminar may accept legal employment that results from the seminar, provided the seminar does not highlight the lawyer s professional experience beyond what is permitted in the rules, the lawyer does not give individualized advice, and the lawyer does not engage in improper solicitation. Adv. Op A lawyer also is permitted to make general statements to seminar attendees regarding his or her availability, telephone number, address, and whether the lawyer will provide a free consultation.

23 Op Id. Further, if the lawyer recognizes that an attendee may have a legal problem or is unaware of his or her legal rights, then the lawyer should suggest the attendee seek counsel of the attendee s choice. Id. Other ABA Model Rule states have adopted similar opinions. In New York, lawyers may present legal seminars to non-lawyers, but if the program discusses a lawyer s skills or reputation or gives reasons to hire the lawyer, then the lawyer must comply with the advertising rules. N.Y. St. Bar Assn. Op. 918 (2012). In Pennsylvania and Maryland, a lawyer may present a seminar to non-clients, but may not directly solicit attendees or address specific, personalized questions at the seminar. Pa. Bar Assn. Op (1990); Pa. Bar Assn. Op (1994); 42-APR Md. B.J. 61 (2009). Michigan requires lawyers to advise attendees, who wish to retain a lawyer from the firm after a legal seminar, to contact the law firm office to set up an appointment. Mich. Ethics Op. RI-99 (1999). In North Carolina, lawyers may not contact seminar attendees in-person or by phone, rather attendees must contact the lawyer; however, lawyers may request attendees to complete evaluations that include contact information and areas of interest N.C. Ethics Op. 4. Consistent with the Board s previous advice under the former Code, as well as the opinions from other jurisdictions under the Model Rules, the Board advises the following. After a legal seminar a lawyer may not answer specific questions of individual attendees or meet one-on-one with attendees to discuss legal issues related to the presentation or the personal legal needs of the attendees. If an attendee approaches the presenting lawyer with a personalized legal question, then the lawyer should advise that person to contact the office to make an appointment or to seek legal counsel of his or her choice. Similarly, if an attendee indicates after the seminar that he or she wishes to retain the presenting lawyer, the lawyer should advise the attendee to contact the law firm office to set up an appointment. The lawyer cannot be the person to initiate contact with the prospective client following a presentation at a legal seminar. The Board recognizes an exception for attorneys who provide pro bono legal services contemporaneously with the presentation of a seminar. Many law school legal clinics, bar association pro bono programs, and legal aid organizations provide general legal seminars on a variety of legal topics to those who cannot afford to hire a lawyer. The ability to combine legal information and individualized brief advice in one setting when the information is offered by volunteer lawyers for the purpose of educating those who cannot afford to hire a lawyer, at no cost to the attendees, increases the access to justice, and differs from a seminar provided by a lawyer in the hope of retaining paying clients.

24 Op Additionally, the potential for abuse or overreach does not exist to the same degree, or at all, when a legal aid or other pro bono program convenes an event offering legal information at the same time as individualized brief advice. The purpose or ultimate goal of the sponsoring organizations, and the pro bono volunteers who participate, is to provide legal help to those who otherwise would not have access to a lawyer. There is no expectation that the organization or the volunteer pro bono lawyers will earn a profit or gain otherwise from retaining an attendee as a client. As a result, in these limited circumstances, pro bono services may permissibly be provided contemporaneously with the presentation of a legal seminar. Therefore, aside from the pro bono exception, a lawyer may not conduct inperson solicitations of prospective clients after presenting a legal seminar. However, a lawyer may accept legal employment resulting from a legal seminar at which he or she presents, but contact must be initiated by the prospective client, and all requirements of Rule 7.3 must be met. Answer to Question 3: The prior professional relationship exception under Prof. Cond. R. 7.3(a) does not apply to employees of an organizational client. A lawyer may not make an offer of legal services to attendees during a firm-sponsored seminar, even if the employer of the attendees is a client of the firm. However, a presenting lawyer may make general statements to attendees regarding availability, contact and firm information, and whether the firm provides free consultations. See Adv. Op Prof. Cond. R governs situations in which a lawyer represents an organization as a client. A lawyer employed or retained by an organization represents the organization acting through its constituents. Prof. Cond. R. 1.13(a). The organization is the client, and employees of the organization are not typically considered clients of the firm. The organization s lawyer must ensure that the individual employees understand that the lawyer represents the organization as a whole, but may also represent individual employees. However, if a conflict of interest arises, the lawyer for the organization likely cannot provide legal representation for those individual employees. Prof. Cond. R. 1.13, Comment [10], [12]. If a lawyer represents an organization and, at the same time, chooses to represent an employee of that organization, the lawyer must ensure that an extensive conflict of interest analysis is conducted, and appropriate waivers are executed. Additionally, a lawyer must recognize that under the Rules of Professional Conduct certain conflicts of interest cannot be waived. See for example, Prof. Cond. R. 1.7(c).

25 Op The lawyer-client relationship exists between the organization and the lawyer, not the lawyer and the individual employees, and no prior professional relationship exists between the individual employees of the organization that exempts the lawyer from the mandates of Prof. Cond. R Employees of the organization who attend the seminar are considered prospective clients, and the requirements under Prof. Cond. R. 7.3 apply. Therefore, a lawyer for an organization may not make an offer of services to its employees who attend a seminar. CONCLUSION: A lawyer may present a legal seminar to prospective clients, and may provide brochures and law firm information near the exit of the seminar. A lawyer may not meet with attendees following the seminar to answer legal questions, even if attendees sign up to do so in advance. Rather, attendees with individual legal questions should be advised to contact the lawyer s office to schedule an appointment to meet with the lawyer, or to contact a lawyer of their choice. An exception exists for lawyers providing pro bono services who may meet with attendees contemporaneously to presenting an informational legal seminar. Finally, the prior professional relationship exception under Prof. Cond. R. 7.3 does not apply to seminar attendees who are employees of an organizational client of the presenting lawyer. Advisory Opinions of the Board of Professional Conduct are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney s Oath of Office.

26 24 RULE 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. Comment [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. [2] The fact that a client suffers a disability does not diminish the lawyer s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. [3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client s interests foremost and, except for protective action authorized under division (b), must look to the client, and not family members, to make decisions on the client s behalf. 82

27 25 [4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward s interest, the lawyer may have an obligation to prevent or rectify the guardian s misconduct. See Rule 1.2(d). Taking Protective Action [5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in division (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then division (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members; using a reconsideration period to permit clarification or improvement of circumstances; using voluntary surrogate decision-making tools such as durable powers of attorney; or consulting with support groups professional services, adult-protective agencies, or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client s best interests, and the goals of intruding into the client s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client s family and social connections. [6] In determining the extent of the client s diminished capacity, the lawyer should consider and balance such factors as: the client s ability to articulate reasoning leading to a decision; variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. [7] If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator, or guardian is necessary to protect the client s interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client s benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client. 83

28 26 Disclosure of the Client s Condition [8] Disclosure of the client s diminished capacity could adversely affect the client s interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to division (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, division (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client s interests before discussing matters related to the client. The lawyer s position in such cases is an unavoidably difficult one. Emergency Legal Assistance [9] In an emergency where the health, safety, or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person s behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these rules as the lawyer would with respect to a client. [10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken. Comparison to former Ohio Code of Professional Responsibility There are no Disciplinary Rules that cover directly the representation of a client with diminished capacity. The only comparable provisions are EC 7-11 and 7-12, which discuss the representation of a client with a mental or physical disability that renders the client incapable of making independent decisions. Rule 1.14 is both broader and narrower than EC It is broader to the extent that it explicitly permits a lawyer to ask for the appointment of a guardian ad litem in the appropriate circumstance, it explicitly permits the lawyer to take reasonably necessary protective action, and

29 27 84 it explicitly permits the disclosure of confidential information to the extent necessary to protect the client s interest. Rule 1.14 is narrower to the extent that it does not explicitly permit the lawyer representing a client with diminished capacity to make decisions that the ordinary client would normally make. The rule does not address the matter of decision-making, as is the case in EC 7-12, but merely states that the lawyer should maintain a normal client-lawyer relationship as far as reasonably possible. Comparison to ABA Model Rules of Professional Conduct Rule 1.14 is identical to the ABA Model Rule.

30 AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY Formal Opinion August 2, 1996 Client Under a Disability A lawyer who reasonably determines that his client has become incompetent to handle his own affairs may take protective action on behalf of the client, including petitioning for the appointment of a guardian. Withdrawal is appropriate only if it can be accomplished without prejudice to the client. The protective action should be the least restrictive under the circumstances. The appointment of a guardian is a serious deprivation of the client s rights and ought not be undertaken if other, less drastic, solutions are available. With proper disclosure to the court of the lawyer s self-interest, the lawyer may recommend or support the appointment of a guardian who the lawyer reasonably believes would be a fit guardian, even if the lawyer anticipates that the recommended guardian will hire the lawyer to handle the legal matters of the guardianship estate. However, a lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer s client. The Committee has been asked to address ethical issues that arise when a lawyer believes that his client is no longer mentally capable of handling his legal affairs. May the lawyer consult with family members or others? May the lawyer petition the court to appoint a guardian for the client? Is he obligated to do so? May the lawyer represent a third party petitioning for the guardianship? May the lawyer support the appointment of a guardian who the lawyer expects will retain him in connection with handling the client s affairs? If so, must the lawyer disclose to the court the fact that the person appointed will likely retain the lawyer to handle all legal matters concerning the client s estate? The Effect of Incompetency on the Client-Lawyer Relationship Representation of a client who becomes incompetent to handle his own 28 This opinion is based on the Model Rules of Professional Conduct and, to the extent indicated, the predecessor Model Code of Professional Responsibility of the American Bar Association. The laws, court rules, regulations, codes of professional responsibility and opinions promulgated in the individual jurisdictions are controlling. AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSI- BILITY, 541 North Fairbanks Court, 14th Floor, Chicago, Illinois Telephone (312) CHAIR: Margaret C. Love, Washington, DC Richard L. Amster, Roseland, NJ George W. Bermant, Snowmass Village, CO Deborah A. Coleman, Cleveland, OH Lawrence J. Fox, Philadelphia, PA George W. Jones, Jr., Washington, DC Marvin L. Karp, Cleveland, OH Arthur W. Leibold, Jr., Washington, DC Rory K. Little, San Francisco, CA Sylvia E. Stevens, Lake Oswego, OR CENTER FOR PROFESSIONAL RESPONSIBILITY: George A. Kuhlman, Ethics Counsel; Joanne P. Pitulla, Assistant Ethics Counsel

31 Formal Opinion 2 affairs presents special challenges for the lawyer. This is recognized in the Model Rules of Professional Conduct (1983, as amended) in Rule 1.14(a) s directive that the lawyer in that situation maintain insofar as possible a normal relationship with an incompetent client: Rule 1.14 Client Under a Disability (a) When a client s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer-client relationship with the client. A normal client-lawyer relationship presumes that there can be effective communication between client and lawyer 1, and that the client, after consultation with the lawyer, can make considered decisions about the objectives of the representation and the means of achieving those objectives. 2 When the client s ability to communicate, to comprehend and assess information, and to make reasoned decisions is partially or completely diminished, maintaining the ordinary relationship in all respects may be difficult or impossible. Rule 1.14 recognizes that there may be situations in which a normal client-lawyer relationship is impaired, or, perhaps, impossible because of client disability. Rule 1.14(a) requires a lawyer, as far as reasonably possible, to maintain a normal lawyer client relationship with a client whose ability to make adequately considered decisions in connection with the representation is impaired. This obligation implies that the lawyer should continue to treat the client with attention and respect, attempt to communicate and discuss relevant matters, and continue as far as reasonably possible to take action consistent with the client s directions and decisions Rule 1.4(a): A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 2. Rule 1.2(a): A lawyer shall abide by a client s decisions concerning the objectives of representation... and shall consult with the client as to the means by which they are to be pursued Comment 1 to Rule 1.14 reminds us that a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client s own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. To the same effect was EC 7-12 of the predecessor Model Code of Professional Responsibility: If a client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid.