Ohio State Bar Association v. Owen , 145 Ohio St. 3d 315 ( 2016 )

[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.]
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This slip opinion is subject to formal revision before it is published in
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65 South Front Street, Columbus, Ohio 43215, of any typographical or
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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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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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