Must a court-appointed lawyer for an indigent criminal defendant give the no-malpractice-insurance notice under Rule 1.4(c)?

Plain-English summary

Since July 1, 2001, an Ohio lawyer who does not carry professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate must give the client a signed notice and obtain a signed acknowledgment. That requirement, formerly DR 1-104 of the Code of Professional Responsibility, became Rule 1.4(c) of the Ohio Rules of Professional Conduct effective February 1, 2007. The question was whether a lawyer appointed to represent an indigent criminal defendant must give that notice.

The Board concluded the notice is not required, because such an appointment falls within the Rule 1.4(c)(3)(i) exception for a lawyer employed by a governmental entity who renders services pursuant to that employment. The Board reasoned that no purpose would be served by the disclosure: a court-appointed criminal defense lawyer provides representation for which indemnification against malpractice is provided by law. Under R.C. 120.41, a lawyer who accepts appointments to represent indigent criminal defendants is indemnified for any malpractice judgment or settlement and for the costs and fees of defending the claim.

The Board placed this against the rule's purpose, client protection: Comment [9] explains a client may wrongly assume malpractice coverage is mandatory, and Comment [8] notes insurance is not required except for lawyers practicing through certain organizational forms. The opinion is narrow, resolving only the appointed-indigent-defense situation under the governmental-entity exception.

In practice

The opinion holds that, under Ohio Rule 1.4(c) as adopted effective February 1, 2007, a lawyer appointed by a court to represent an indigent criminal defendant is not required to give the no-malpractice-insurance notice, because the appointment falls within the Rule 1.4(c)(3)(i) governmental-entity exception. Per the opinion, the result rests on the statutory indemnification in R.C. 120.41 for court-appointed indigent-defense counsel. The opinion does not address other appointment or employment situations beyond the governmental-entity and in-house exceptions stated in the rule.

Common questions

Q: Does a court-appointed indigent-defense lawyer have to disclose a lack of malpractice insurance?

A: No. The opinion concludes the lawyer falls within the Rule 1.4(c)(3)(i) governmental-entity exception and need not provide the notice.

Q: Why does the exception apply?

A: Per the opinion, the appointment is service for a governmental entity, and Ohio law (R.C. 120.41) indemnifies such appointed counsel against malpractice judgments, so the disclosure would serve no purpose.

Q: When must a lawyer give the Rule 1.4(c) notice generally?

A: The opinion describes the rule as requiring a lawyer without the stated minimum professional liability insurance to give the client a signed notice and obtain a signed acknowledgment, subject to the governmental-entity and in-house-counsel exceptions.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.4(c) (notice when a lawyer does not maintain professional liability insurance), including the Rule 1.4(c)(3)(i) governmental-entity exception and Rule 1.4(c)(3)(ii) in-house-counsel exception, and Comments [8] and [9] (Model Rule 1.4). The rule succeeded former Ohio Code of Professional Responsibility DR 1-104.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 1.4(c), R. 1.4(c)(3)(i)-(ii), Comments [8]-[9] (Model Rule 1.4)
• Former Ohio Code of Professional Responsibility DR 1-104 (predecessor notice rule)

Statutes:

• Ohio Rev. Code 120.41 (indemnification of court-appointed indigent-defense counsel)

See also

• Ohio BPC Op. 2005-001: Contract Research Attorney and the Malpractice-Insurance Notice
• Ohio BPC Op. 1996-009: Mandatory Arbitration Clauses in Engagement Letters
• Ohio BPC Op. 2003-003: Fee Division, Assuming Responsibility, and the Written Agreement

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_07-006.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                   OFFICE OF SECRETARY




                               OPINION 2007-6
                            Issued August 10, 2007

SYLLABUS: A court appointed lawyer for an indigent criminal defendant is not
required to provide notice to the defendant that the lawyer does not maintain
professional liability insurance. A court appointed lawyer for an indigent criminal
defendant falls within the Rule 1.4(c)(3)(i) governmental entity exception to the
notice requirement of Rule 1.4(c).

OPINION: This opinion addresses whether the Ohio Rules of Professional
Conduct require a court appointed lawyer for an indigent criminal defendant to
notify a defendant if the lawyer does not maintain professional liability insurance.

  Is a court appointed lawyer for an indigent criminal defendant
  required pursuant to Rule 1.4(c) to provide notice to the defendant
  that the lawyer does not maintain professional liability insurance?

Since July 1, 2001, Ohio lawyers who do not maintain professional liability
insurance are required to notify their clients and obtain acknowledgment of the
lawyer’s lack of professional liability insurance. The notice must be signed by the
lawyer and the acknowledgment of receipt of the notice must be signed by the
client. This requirement is set forth in Rule 1.4(c) of the Ohio Rules of
Professional Conduct which became effective February 1, 2007 and prior to that
was set forth in now former DR 1-104 of the Ohio Code of Professional
Responsibility.

                                             Rule 1.4

    (c)   A lawyer shall inform a client at the time of the client’s engagement

of the lawyer or at any time subsequent to the engagement if the lawyer does not
maintain professional liability insurance in the amounts of at least one hundred
thousand dollars per occurrence and three hundred thousand dollars in the
aggregate or if the lawyer’s professional liability insurance is terminated. The
notice shall be provided to the client on a separate form set forth following this
rule and shall be signed by the client.
Op. 2007-6 2

          (1)     A lawyer shall maintain a copy of the notice signed by the
  client for five years after termination of representation of the client.

         (2)    A lawyer who is involved in the division of fees pursuant to
  Rule 1.5(e) shall inform the client as required by division (c) of this rule
  before the client is asked to agree to the division of fees.

         (3)     The notice required by division (c) of this rule shall not apply
  to either of the following:

               (i)    A lawyer who is employed by a governmental entity
         and renders services pursuant to that employment;

               (ii)   A lawyer who renders legal services to an entity that
         employs the lawyer as in-house counsel.

                          NOTICE TO CLIENT

   Pursuant to Rule 1.4 of the Ohio Rules of Professional Conduct, I am

required to notify you that I do not maintain professional liability (malpractice)
insurance of at least $100,000 per occurrence and $300,000 in the aggregate.

                                                    _____________________
                                                    Attorney’s Signature


                    CLIENT ACKNOWLEDGEMENT

  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.

                                                    _____________________
                                                    Client’s Signature


                                                    _____________________
                                                    Date

The underlying reason for requiring notice and acknowledgement of a lawyer’s
lack of professional liability insurance is client protection. Comment [9] to Rule
1.4 explains that “[t]he client may not be aware that maintaining professional
liability insurance is not mandatory and may well assume that the practice of law
requires that some minimum financial responsibility be carried in the event of
Op. 2007-6 3

malpractice. Therefore, a lawyer who does not maintain certain minimum
professional liability insurance shall promptly inform a prospective client or
client.”

There are two exceptions to Rule 1.4(c). A lawyer employed by a governmental
entity and who renders services pursuant to that employment is not required to
provide notice of a lack of maintaining professional malpractice insurance. And,
a lawyer employed as in-house counsel who renders legal services to the
employing entity is not required to provide such notice. These exceptions are
established in divisions (c)(3)(i) and (ii) of Rule 1.4.

Comment [8] to Rule 1.4 explains that “[a]lthough it is in the best interest of the
lawyer and the client that the lawyer maintain professional liability insurance or
another form of adequate financial responsibility, it is not required in any
circumstance other than when the lawyer practices as part of a legal professional
association, corporation, legal clinic, limited liability company, or registered
partnership.

It is the Board’s view that a lawyer appointed by a court to represent an indigent
criminal defendant falls within the governmental entity exception in Rule
1.4(c)(3)(i) and therefore is not required to provide notice of lack of professional
liability insurance. No purpose would be served by requiring such disclosure. A
court appointed criminal defense lawyer is providing legal representation for
which indemnification for malpractice is provided by law. Ohio law provides that
if a malpractice action is filed against a lawyer, who accepts court appointments
to represent indigent criminal defendants, the lawyer shall be indemnified for any
judgment awarded in the malpractice action or the amount negotiated in
settlement of the malpractice claim, and for court costs or legal fees incurred in
defense of the malpractice claim. Ohio Rev.Code Ann. §120.41 (West 2002).

In conclusion, the Board advises as follows. A court appointed lawyer for an
indigent criminal defendant is not required to provide notice to the defendant that
the lawyer does not maintain professional liability insurance. A court appointed
lawyer for an indigent criminal defendant falls within the Rule 1.4(c)(3)(i)
governmental entity exception to the notice requirement of Rule 1.4(c).

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective or
hypothetical questions regarding the application of the Supreme Court
Rules for the Government of the Bar of Ohio, the Supreme Court Rules for
the Government of the Judiciary, the Ohio Rules of Professional Conduct,
the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.