In addition to the emphasis on the importance of staying current on technological issues, the Supreme Court of Ohio’s 2015 amendments to the Rules of Professional Conduct provide helpful guidance in a number of areas.
Comment 6 to Rule 1.1 [Competence] discusses the issues surrounding a lawyer’s retention of another lawyer from a different firm to assist in a given representation. The client’s consent must be obtained before the retention and the comment notes that the following rules are implicated: 1.2 [Scope of Representation]; 1.4 [Communication]; 1.6 [Confidentiality]; and 5.5(a) [Unauthorized Practice of Law].
Rule 1.6 and the comments were amended to assist lawyers who are transitioning from one firm to another. Rule 1.6 now allows a lawyer who is changing firms to reveal client information “to detect and resolve conflicts of interest arising from the lawyer’s change of employment…” But only if the disclosure would not compromise the attorney-client privilege otherwise be prejudicial to the client. Comments 13 and 14 of Rule 1.6 expands on this new permissive disclosure of client information. As the comments indicate, these disclosures should only occur after substantive discussions regarding the new relationship have occurred and should normally be limited to client identity, entities involved, a brief summary of the issues, and information about whether the matter has terminated.
Comment 2 to Rule 1.18 [Duties to Prospective client] clarifies that duties to a prospective client which are created by a consultation could include, at least potentially, a written, an oral, or an electronic communication. Without adequate warnings, lawyer advertising that requests or invites submission of client information may create such duties. The comment does make it clear that a ‘consultation’ does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice and contact information.
These amendments create new obligations for Ohio lawyers and pose traps for the unwary. All three of these scenarios are fairly common occurrences in the practice of law and Ohio lawyers need to be aware of these new ethical pronouncements.