An exception to “Fool me once, shame on you; fool me twice, shame on me” in Ohio

Lawyers who frequently represent other lawyers in disciplinary proceedings are well aware that the ethics rules in their state offer up an inherent 2-for-1 construction for bar prosecutors because states with versions of RPC 8.4(a) patterned on the Model Rules establish that a lawyer also violates RPC 8.4(a) by violating any other ethics rule.  That same rule also makes it an ethics violation for a lawyer to attempt to violate the ethics rules.

Unlike criminal law where people often find themselves in jail just for a criminal offense of attempting to commit a crime, situations where a lawyer ends up being disciplined merely for attempting to break a rule are rare.

The Supreme Court of Ohio issued a public reprimand against an Ohio lawyer for just such a thing yesterday.  The lawyer was ultimately hoodwinked out of $2,000 by a person posing as a personal injury client (including a fake limp and a bandaged arm).  Despite the fact that the swindler committed a crime and was ultimately sentenced to 8 months in prison, the fleeced lawyer ended up being disciplined as well.  Why?  Because the lawyer provided the $2,000 to the thief intending it to be an advance of living expenses.  The lawyer also entered into a contingent fee agreement to represent the person in pursuit of a lawsuit for the claimed injuries from an industrial accident.

RPC 1.8(e) in Ohio, as in Tennessee, is patterned upon the Model Rules, and prohibits lawyers from “provid[ing] financial assistance to a client in connection with pending or contemplated litigation,” unless the financial assistance involves advancing court costs or expenses of litigation.  Paragraph [10] of the Comment to that rule in Ohio, as is the case here in Tennessee, explains:

Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.

So, because the lawyer thought he was dealing with a real client with a real case and provided money for a prohibited purpose — living expenses — it ultimately didn’t matter that the person was not really a client.  The lawyer’s own fastidiousness in terms of record keeping ultimately helped leave no doubt the reason for the financial transaction as the opinion explains that he had the person “sign a photocopy of seven $100 bills with the notation, ‘Temporary loan of $700.00 cash advanced 2/3/14…” and also gave the person a check for $1,300.

All of this came to light only after the lawyer, prompted by a telephone call from another person inquiring about hiring the lawyer in a personal injury matter made a report to local police.  (Presumably, the first guy put the word out that they had a live one in the lawyer and the caller was looking for the same deal.)

So, despite only getting fooled once, the Supreme Court of Ohio still publicly shamed the lawyer.

(P.S.  Readers should be proud of me for avoiding the temptation to load this post up with puns making use of the lawyer’s last name.)

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