Thursday, August 6, 2020

Attorney Entitled To Notice Of Charges

The Ohio Supreme Court dismissed a disciplinary matter on notice grounds

The Board of Professional Conduct recommends that we publicly reprimand him for violations of two divisions of an ethical rule that were not charged in the disciplinary complaint against him. For the reasons explained below, we conclude that Reinheimer did not have fair notice of those charges, and we therefore dismiss this case.

The attorney had been charged with three violations, two of which were dismissed for lack of evidence

During closing arguments, relator suggested that the panel was not limited to finding a violation of Prof.Cond.R. 1.4(a)(3)—the sole remaining charge—and that the panel could find a violation of any division of Prof.Cond.R. 1.4.1 Relator, however, mentioned only one other division—Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to inform a client of any decision or circumstance requiring the client’s informed consent)...

Upon consideration of the parties’ briefs, the panel unanimously dismissed the charged violation of Prof.Cond.R. 1.4(a (3) for lack of sufficient evidence. The panel, however, granted relator’s purported motion to amend the complaint, found that Reinheimer violated Prof.Cond.R. 1.4(a)(1) and 1.4(b), and recommended that he be publicly reprimanded for those violations. The board issued a report adopting the panel’s findings of misconduct and recommended sanction.

Notice

Although all divisions of Prof.Cond.R. 1.4 relate to an attorney’s communications with his or her client, each division is distinct and requires or prohibits certain conduct. Alleging that Reinheimer violated one division based on specifically alleged facts failed to place him on fair notice that he may have violated other divisions of Prof.Cond.R. 1.4 based on slightly different facts, especially when the uncharged divisions were raised after the close of the evidence and the parties had not consented to a hearing on those uncharged violations and unalleged facts. Although there may be circumstances when the allegations in a complaint put a respondent on fair notice of uncharged violations of Prof.Cond.R. 1.4, this is not one of those cases.

Justice Kennedy concurred

I write separately to emphasize that imposing discipline for violations of ethics rules that were not alleged in the complaint deprives the disciplined attorney of due process...

Due process precluded the board from amending the complaint to add new charges of professional misconduct after Reinheimer testified. To go beyond that narrow holding even though it is unnecessary to do so contravenes the “ ‘cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more,’ ” State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK Laboratories, Inc. v. United States Drug Enforcement Administration, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in judgment).

As did Justice Fischer

Although I agree with the court’s disposition of the case, I wish to note the possibility that if violations of Prof.Cond.R. 1.4(a)(1) and 1.4(b) were not properly alleged—and thus never properly at issue and not able to have been litigated—those possible claims may still exist. And given that there is also no statute of limitations on disciplinary actions, see Cincinnati Bar Assn. v. Young, 89 Ohio St.3d 306, 315, 731 N.E.2d 631 (2000), citing Columbus Bar Assn. v. Teaford, 6 Ohio St.2d 253, 255, 217 N.E.2d 872 (1966), it is possible that because the violations were never alleged, with proper notice, they may still be charged.

Taking no position, I ask rhetorically: may relator consider whether he wishes to charge the violations that this court today concludes were improperly found by the board? Relator might or might not succeed in “retrying” those counts, after giving proper notice to Reinheimer. Given our duty to protect the public, I think it is appropriate to consider all available options, within constitutional limits, for ensuring that attorneys who have engaged in misconduct answer for that misconduct in the disciplinary process.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/08/the-ohio-supreme-court-dismissed-a-disciplinary-matter-on-notice-grounds-the-board-of-professional-conduct-recommends-that-w.html

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