Ohio State Bar Association v. Owen

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Ohio State Bar Assn. v. Owen, Slip Opinion No. 2016-Ohio-864.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2016-OHIO-864

OHIO STATE BAR ASSOCIATION v. OWEN.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Ohio State Bar Assn. v. Owen, Slip Opinion No.

2016-Ohio-864.]

Attorneys—Misconduct—Failure to properly notify clients that lawyer did not

maintain minimum level of professional liability insurance—Public

reprimand.

(No. 2015-1317—Submitted September 15, 2015—Decided March 9, 2016.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court of Ohio, No. 2014-089.

_______________________

Per Curiam.

{¶ 1} Respondent, Christopher Stanley Owen of Moraine, Ohio, Attorney

Registration No. 0080766, was admitted to the practice of law in Ohio in 2006. In

December 2014, relator, Ohio State Bar Association, charged him with violating

the Rules of Professional Conduct regulating, among other things, client

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communications, client trust accounts, fee agreements, and the sale and purchase

of a law practice. After a hearing, a three-member panel of the Board of

Professional Conduct unanimously dismissed all of the charged rule violations

except one: the panel found that Owen had violated Prof.Cond.R. 1.4(c) by

failing to properly inform clients that his law firm did not maintain professional

liability insurance. The board adopted the panel’s findings of fact and misconduct

and recommends that we sanction him with a public reprimand. Neither party has

filed objections to the board’s report and recommendation. Based on our

independent review of the record, we accept the board’s findings and publicly

reprimand Owen for his misconduct.

Misconduct

{¶ 2} If a lawyer does not maintain certain levels of professional liability

insurance, Prof.Cond.R. 1.4(c) requires the lawyer to notify each client of that fact

at the time of engagement. The rule specifically mandates that the notice be

provided to the client “on a separate form” and that the form be signed by the

client and include the following language: “I acknowledge receipt of the notice

required by Rule 1.4 of the Ohio Rules of Professional Conduct that [insert

attorney’s name] does not maintain professional liability (malpractice) insurance

of at least $100,000 per occurrence and $300,000 in the aggregate.” (Brackets

sic.)

{¶ 3} Here, the board found that when Owen was employed as the

managing attorney in the Moraine, Ohio office of an out-of-state law firm, he

provided clients with a firm-generated document listing several disclaimers,

including that the law firm did not maintain outside malpractice insurance. The

notice, however, was not on a separate form; it cited the former version of the

applicable rule, DR 1-104; and it did not use the language prescribed in

Prof.Cond.R. 1.4(c). Additionally, the notice indicated that rather than

maintaining outside malpractice insurance, the law firm was “wholly self-

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January Term, 2016

insured.” The board found that Owen had failed to research or independently

determine whether the notice was compliant with the Ohio Rules of Professional

Conduct, and the board noted that the self-insurance language was potentially

confusing because clients may not have understood the difference between self-

insurance and insurance coverage provided by the terms of a malpractice policy

purchased from a third-party insurer. Accordingly, the board found that Owen

had failed to comply with the specific requirements in Prof.Cond.R. 1.4(c). We

agree.

Sanction

{¶ 4} When imposing sanctions for attorney misconduct, we consider

several relevant factors, including the ethical duties that the lawyer violated and

the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96

Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

listed in Gov.Bar R. V(13).

{¶ 5} As aggravating factors, the board found that Owen committed

multiple offenses by using the defective notice form when representing multiple

clients and that he refused to acknowledge the wrongful nature of his conduct.

See Gov.Bar R. V(13)(B)(4) and (7). In mitigation, the board found that Owen

has no prior discipline, lacked a dishonest or selfish motive, made full and free

disclosures to the board and cooperated in the disciplinary process, and possesses

excellent character and reputation. See Gov.Bar R. V(13)(C)(1), (2), (4), and (5).

The board also noted that there was no evidence that any clients were harmed by

his misconduct.

{¶ 6} Based on this record, the board recommends that we publicly

reprimand Owen. We have imposed that same sanction on attorneys who

similarly failed to provide their clients with proper written notice that they did not

maintain professional liability insurance. Columbus Bar Assn. v. Roy, 143 Ohio

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St.3d 60, 2015-Ohio-1190, 34 N.E.3d 108; Akron Bar Assn. v. DeLoach, 133

Ohio St.3d 329, 2012-Ohio-4629, 978 N.E.2d 181.

{¶ 7} Accordingly, having considered Owen’s misconduct, the

aggravating and mitigating factors, and the sanctions imposed in comparable

cases, we agree that a public reprimand is the appropriate sanction in this case.

Christopher Stanley Owen is hereby publicly reprimanded for his failure to

comply with Prof.Cond.R. 1.4(c). Costs are taxed to Owen.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

_________________

Crabbe, Brown & James, L.L.P., and Robert J. Gehring; and Eugene P.

Whetzel, Bar Counsel, for relator.

James E. Arnold & Associates, L.P.A., and Alvin E. Mathews Jr., for

respondent.

_________________

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