Legal Question in Business Law in Ohio

Re: lawsuit

Dear Inquirer: Your former Attorney is either carelessly or intentionally treading on a very well-defined line of conflict of interest, warranting your filing a complaint with your local Bar Association Grievance Committee, for violation of the Ohio Rules of Professional Conduct.

Here is the specific rule:

RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

RULES OF PROFESSIONAL CONDUCT

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

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(Part of Rule omitted as not applicable.)

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[4] Division (b) of this rule addresses only ongoing or future illegal or fraudulent acts of a client. With respect to past illegal or fraudulent client acts of which the lawyer later becomes aware, Rule 1.6(b)(3) permits, but does not require, a lawyer to reveal information reasonably necessary to mitigate substantial injury to the financial or property interests of another that has resulted from the client's commission of an illegal or fraudulent act, in furtherance of which the client has used the lawyer's services.

Comparison to former Ohio Code of Professional Responsibility

Rule 4.1 addresses the same issues contained in several provisions of the Ohio Code of Professional Responsibility. Division (a) of the rule is virtually identical to DR 7-102(A)(5). Division (b) parallels DR 7-102(A)(3) and the "fraud on a person" portion of DR 7-102(B)(1). The "fraud on a tribunal" portion of DR 7-102(B)(1) is now found in Rule 3.3.

No Ohio case has construed DR 7-102(B) in the context of a lawyer failing to disclose a fraud on a person. Nevertheless, revealing such an ongoing or future fraud is justified under Rule 4.1(b) when the client refuses to prevent it, and the lawyer's withdrawal from the matter is not sufficient to prevent assisting the fraud.

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I respectfully urge you to first contact another Attorney for a legal opinion, based upon all of the facts which were not completely provided in your inquiry.

Good luck!

Sincerely, J. Norman Stark, Cleveland, Ohio

Re: lawsuit

Dear Inquirer:

Earlier, I responded to your question, however I accidently quoted the incorrect rule applicable. I apologize, and suggest you use this rule for your case:

RULE 1.9 DUTIES TO FORMER CLIENTS

RULES OF PROFESSIONAL CONDUCT

I. CLIENT-LAWYER RELATIONSHIP

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RULE 1.9: DUTIES TO FORMER CLIENTS

(a) Unless the former client gives informed consent, confirmed in writing, a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client.

(b) Unless the former client gives informed consent, confirmed in writing, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client where both of the following apply:

(1) the interests of the client are materially adverse to that person;

(2) the lawyer had acquired information about the client that is protected by Rules 1.6 and 1.9(c) and material to the matter.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter do either of the following:

(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known;

(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

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(Balance of Rule omitted.)

Good luck!

Sincerely,

J. Norman Stark, Cleveland, OH.