Office of Disciplinary Counsel v. Clavner

Ohio Supreme Court

Office of Disciplinary Counsel v. Clavner

674 N.E.2d 1369, 77 Ohio St. 3d 431

CourtOhio Supreme Court

DecidedFebruary 19, 1997

DocketNo. 96-1995

StatusPublished

Cited by6 cases

This text of 674 N.E.2d 1369 (Office of Disciplinary Counsel v. Clavner) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Office of Disciplinary Counsel v. Clavner, 674 N.E.2d 1369, 77 Ohio St. 3d 431 (Ohio 1997).

Pincite

Opinion

Per Curiam.

DR 6-102(A) provides that “[a] lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.” We do not read this rule so as to prohibit an attorney from ever raising a defense against or attempting to settle a malpractice action. However, this rule places an attorney on notice that when a client has a potential cause of action for malpractice, the attorney and the client are adversaries. Because the attorney-client relationship places the attorney in a position of dominance, courts and professional ethics committees have said that a potential malpractice claim may be settled only if the client consents after full disclosure, the settlement is not unconscionable, inequitable, or unfair, and, most important, the client is advised to seek independent counsel before signing the agreement. Florida Bar v. Nemec (Fla.1980), 390 So.2d 1190; Commt. on Legal Ethics of the West Virginia State Bar v. Cometti (W.Va.1993), 189 W.Va. 262, 430 S.E.2d 320 (interpreting Rule 1.8[h] of the ABA Model Rules of Professional Conduct); Opinion of Standing Committee on Legal Ethics of the Virginia State Bar No. 1550 (Oct. 20, 1993), ABA/BNA Lawyers’ Manual on Professional Conduct, Ethics Opinions 1991-1995, at 1001:8723; Professional Ethics Commission of the Board of Overseers of the State Bar of Maine, Opinion No. 68 (Mar. 14, 1986), 1 Maine Bar Journal, No. 3 (May 1986) 154.

Whatever may have been the intentions of respondent, however little, if any, damage resulted to her clients, and regardless of whether her clients had a cause of action for malpractice, respondent should have been aware that when she began negotiations with her clients for a release of any potential claims against her, she was in an adversarial relationship with them. She should have informed her clients of this adversarial relationship and their right to independent counsel before they signed the release. No good intentions on the part of respondent to spare the clients harm and no careful explanation of the terms of the release can excuse the violation of DR 6-102(A).

[433]*433We adopt the board’s findings and recommendation and hereby reprimand the respondent publicly. Costs taxed to respondent.

Judgment accordingly.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.

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Per Curiam.

DR 6-102(A) provides that “[a] lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.” We do not read this rule so as to prohibit an attorney from ever raising a defense against or attempting to settle a malpractice action. However, this rule places an attorney on notice that when a client has a potential cause of action for malpractice, the attorney and the client are adversaries. Because the attorney-client relationship places the attorney in a position of dominance, courts and professional ethics committees have said that a potential malpractice claim may be settled only if the client consents after full disclosure, the settlement is not unconscionable, inequitable, or unfair, and, most important, the client is advised to seek independent counsel before signing the agreement. Florida Bar v. Nemec (Fla.1980), 390 So.2d 1190; Commt. on Legal Ethics of the West Virginia State Bar v. Cometti (W.Va.1993), 189 W.Va. 262, 430 S.E.2d 320 (interpreting Rule 1.8[h] of the ABA Model Rules of Professional Conduct); Opinion of Standing Committee on Legal Ethics of the Virginia State Bar No. 1550 (Oct. 20, 1993), ABA/BNA Lawyers’ Manual on Professional Conduct, Ethics Opinions 1991-1995, at 1001:8723; Professional Ethics Commission of the Board of Overseers of the State Bar of Maine, Opinion No. 68 (Mar. 14, 1986), 1 Maine Bar Journal, No. 3 (May 1986) 154.

Whatever may have been the intentions of respondent, however little, if any, damage resulted to her clients, and regardless of whether her clients had a cause of action for malpractice, respondent should have been aware that when she began negotiations with her clients for a release of any potential claims against her, she was in an adversarial relationship with them. She should have informed her clients of this adversarial relationship and their right to independent counsel before they signed the release. No good intentions on the part of respondent to spare the clients harm and no careful explanation of the terms of the release can excuse the violation of DR 6-102(A).

[433]*433We adopt the board’s findings and recommendation and hereby reprimand the respondent publicly. Costs taxed to respondent.

Judgment accordingly.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.

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674 N.E.2d 1369, 77 Ohio St. 3d 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-disciplinary-counsel-v-clavner-ohio-1997.

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