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2 former High Court disciplinary counsels join forces

RICHARD WEINER
Legal News Reporter

Published: October 27, 2014

Many attorneys, especially younger attorneys or solo practitioners, can get into challenging ethical situations without knowing what to do, and, sometimes, without even knowing that they are crossing ethical boundaries, said former Ohio Supreme Court disciplinary counsel Jonathan Coughlan.

Coughlan has recently joined another former Ohio Supreme Court disciplinary counsel, Geoffrey Stern, in the ethics and professional responsibility section of the Columbus firm of Kegler, Brown, Hill & Ritter. Stern has been a member of that firm since 1997.

Together, the two men total more than 20 years’ experience in the office of the disciplinary counsel.

They are two of only five attorneys to have ever held that office, and now offer attorneys throughout Ohio access to expertise in a vital area of law practice that is rare in a private law office in the state.

Additionally, Stern is the only person who has ever served in that office and as the chair of the Ohio State Bar Association Committee on Legal Ethics and Professional Conduct. His father, Leonard, served as the first disciplinary counsel to the Supreme Court.

The two lawyers, and their firm, are able to work with members of the bar the entire area of legal ethics and professional responsibility, said Coughlan.

“Our firm’s professional responsibility team now has seven lawyers,” said Stern, who work with questions of ethics for attorneys before, during, and after they may arise in a case, he said.

In addition, said Stern, “a big area for us is our ability to serve as expert witnesses, particularly in the legal malpractice area, and in disputed fee cases. We are called into legal malpractice cases to discuss the standards reflected in the ethics rules, and to explain the ramifications of ‘what might have happened’.”

The team also has worked with bar admissions cases, they said. “People who want to take the bar can get caught up in problems like excessive bankruptcies, or numerous traffic tickets,” said Coughlan, who said that the firm handles about five to 10 of these cases per year.

Stern indicated that many, if not most, of the calls that they receive from attorneys regarding ethics questions relate with the behavior, not of that attorney, but of opposing counsel and judges.

“If they see a problem developing, they usually figure it out enough to call us before (it develops further),” said Stern. “If not, they can wind up calling us later.”

Once an attorney does have an ethics grievance filed against him or her, the firm also will represent that attorney, said Coughlan. “There are three or four of us who practice in this area,” he said. “Each attorney handles about 20 to 30 of these cases per year.”

Both attorneys said that most of the lawyers who get into ethics trouble come from one of three categories: new attorneys, solo practitioners and people who have substance abuse problems.

“New attorneys and people with substance abuse problems have help available, if they want to avail themselves of it,” said Stern. “The Ohio Bar Association has a mentoring program for new attorneys.”

He also pointed out that the Ohio Supreme Court has had a substance abuse program in place for many years. “Studies have shown that 18 to 20 percent of attorneys in Ohio have substance abuse problems,” Stern said.

Historically, ethics experts say that the primary cause of client complaints against attorneys is lack of communication and attention to them, even though most of the headlines of attorneys’ ethical problems seem to involve theft or morality issues.

“About 60 percent of complaints arise from lack of attorney-client communication,” said Stern.

The real cure for potential ethics problems is education, they said, starting in law school and continuing through the CLE process. Both of them conduct CLEs, individually and jointly.

“We emphasize good communication with everyone involved in the legal process,” said Coughlan. He listed “opposing counsel, the client, the court, and a level of professionalism in dealing with witnesses, depositions, and so on.”

With all of this, however, both lawyers noted that the numbers of attorneys who have grievances filed against them has been decreasing over the last decade or so, and that very few of those, “less than ten percent,” actually wind up in a formal hearing

Many attorney ethical problems arise, “because of the pressures of the position, particularly economic pressures,” especially for new lawyers,” said Coughlan. “A lot of lawyers are being forced into solo practice,” he said, where they have no real support.

“There are a lot of people in solo practice who haven’t done that before,” said Stern. “They are making basic mistakes. There are so many pressures on attorneys that it is hard to address all of them.”


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