Senior Lawyer Guidebook 2021 - A publication of the OSBA Senior Lawyer Section - Ohio State Bar Association
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Senior Lawyer Guidebook 2021 A publication of the OSBA Senior Lawyer Section
Table of Contents • Introduction By Michael C. Jones ..............................................................................1 • Registration Options for Retired Lawyers By Wayne M. Rice .................2 • Pro Bono Practice in Retirement By E. Jane Taylor ......................................7 • Issues Affecting Senior Lawyers By Scott R. Mote and Nina Corbut ....12 • Sale of a Law Practice By Thomas J. Bonasera ................................................17 • The Client File Conundrum By Amy C. Stone .................................................22 • The Death of the Solo Practitioner: Now Whose Problem Is This? By Gary J. Leppla ...................................................................................................................27 • Long-Term Care and Medicaid: A Very Brief Overview By Gregory S. French and William J. Browning ..............................................................................32 • Lead Us Not Into Temptation: Avoiding Misconduct and Discipline as a Senior Solo Practitioner By Jonathan E. Coughlan & Linda Hardesty Fish ....................................................................................................................38
INTRODUCTION
In late 2008 then OSBA President Gary Leppla appointed the OSBA Senior Lawyers Work
Group. The group was charged with the following tasks: 1) identify, clarify, and frame the
issues relating to the aging of the legal profession to assist the task force to be appointed; 2)
establish priorities for the task force; 3) determine the makeup of the task force (number of
members, types of persons, constituencies that should be represented); and 4) make other
recommendations.
In August 2009, the work group submitted a final report to then OSBA President Barbara J.
Howard. On Jan. 6, 2010, President Howard appointed the Masters at the Bar Task Force. At
its first meeting on Feb. 18, 2010, President Howard charged the task force with conducting
a comprehensive review of issues affecting Ohio lawyers ages 55 and over, and to
recommend a plan of action on certain issues, including but not limited to: 1) education,
continuing legal education, and related issues; 2) services to lawyers; 3) services by lawyers;
4) rules affecting senior lawyers; and 5) age-related impairment issues.
The task force, chaired by OSBA past President Reginald S. Jackson, Jr., submitted its final
report on Dec. 17, 2010 to past OSBA President Carmen V. Roberto and several of its
recommendations called for the OSBA to create: (1) a Law Practice Management Committee;
and (2) a comprehensive manual for senior lawyers prepared by experts in the field,
including the Elder Law Committee and Estate Planning, Trust and Probate Law Section,
among others.
In response to task force’s Final Report the OSBA Board of Governors created the Senior
Lawyers Section with the section to be governed by a section council. Early on the council
saw a need to assist aging attorneys who were nearing retirement age with issues relating
to the closing and/or sale of their practice, notifying clients of their upcoming retirement,
how to handle client files, malpractice insurance needs and ethical matters relating to the
same. As a result the council created the Senior Lawyers Program and gathered a panel of
experts to assist aging lawyers with all matters relating to their retirement and the closing
and/or sale of their law practice.
In addition, being mindful of the task force’s recommendation of the need for a
comprehensive manual to address these same issues in mid-2020, the Section Council’s
Executive Committee began the task of creating such a manual. The material that follows
represents the culmination of that process. On behalf of the Senior Lawyers Section I hope
that you will find this information to be useful.
May 26, 2021 Michael C. Jones
Senior Lawyers Section Chair, 2019-2021
1
Registration Options for Retired Lawyers
By Wayne M. Rice
Rule VI of the Supreme Court Rules for the Government of the Bar of Ohio (“Gov. Bar R. VI”) governs the
registration of attorneys admitted to the practice of law in Ohio and provides four registration options for
attorneys who want to retire from the practice of law: remain on active registration, retire or resign from the
practice of law, take inactive status or emeritus pro bono status. This article will discuss the first three options
as well as the requirements under Rule 1.17 of the Ohio Rules of Professional Conduct for selling a law
practice. Another article in this guidebook will address emeritus pro bono status.
Remain Active
If an attorney chooses to remain on active status, he or she will have to continue to comply with the
requirements of Gov. Bar R. VI, Section 2 and register with the Office of Attorney Services every two years,
complete at least 24 credit hours of continuing legal education in each biennial compliance period and pay the
registration fee of $350.00. This is the only registration option for attorneys who want to represent the
occasional client or continue to associate with a law firm as of counsel.
Retire or Resign From the Practice of Law
Attorneys who do not want to deal with the registration, continuing legal education and fee requirements of
active status can apply to retire or, in some cases, resign from the practice of law. It is important to note that this
option is unconditional, final and irrevocable.
Gov. Bar R. VI, Section 11 provides that attorneys wishing to retire or resign from the practice of law must first
file an application with the Office of Attorney Services. The application is available online and consists of two
parts: an affidavit that conforms with Gov. Bar R. VI Section 11, and a written waiver that authorizes
Disciplinary Counsel to disclose to the Supreme Court otherwise confidential information about any
disciplinary grievances pending against the attorney.
Upon receipt of a completed application, the Office of Attorney Services will forward it to Disciplinary Counsel
who will conduct an inquiry to determine if any disciplinary proceedings are pending. Disciplinary Counsel
then will file a confidential report under seal with the Office of Attorney Services providing information
regarding any pending disciplinary proceedings and recommending whether to accept, deny or delay the
application. A recommendation of acceptance also will indicate whether the attorney’s status should be
designated as “permanently retired” or “resigned with disciplinary action pending.” A recommendation to delay
or deny will include reasons for the recommendation.
If the recommended designation is “retired,” the Office of Attorney Services will accept the application and
change the attorney’s designation to “retired” in the attorney registration records. On the other hand, if the
recommended designation is “resigned with disciplinary action pending” or Disciplinary Counsel has
recommended that the application be delayed or denied, the Office of Attorney Services will file the application
and confidential report with the Supreme Court.
2
The Supreme Court will review the application and report before entering an appropriate order either accepting
the application and ordering that the attorney’s registration record be marked “resignation with disciplinary
action pending” or “retired,” denying the application altogether or deferring consideration to a later date.
If the attorney’s name was included on a law firm’s letterhead prior to the Supreme Court accepting the
attorney’s retirement, the attorney can be designated as “retired” on the letterhead; however, the attorney cannot
be listed as “of counsel” or otherwise be represented as able to engage in the practice of law.
Inactive Registration
An attorney who wishes to discontinue practicing law in Ohio but possibly resume his or her Ohio practice
later, should consider inactive registration under Gov. Bar R. VI, Section 5. An attorney already admitted to the
practice of law in Ohio may change his or her status to inactive at any time by registering as such with the
Office of Attorney Services.
Attorneys on inactive status do not have to comply with the biennial registration requirement, continuing legal
education compliance or registration fee; however, inactive attorneys must keep the Office of Attorney Services
apprised of their current residence address, office address, office telephone number and office or residence
email address.
Until an attorney registered as inactive requests and is granted reinstatement to active status, he or she cannot
engage in the practice of law in Ohio, hold him or herself out as authorized to practice law in Ohio, hold a
nonfederal judicial position in Ohio or other nonfederal position in Ohio in which the attorney is called upon to
give legal advice or otherwise engage in the practice of law.
An inactive attorney may change his or her status back to “active” by registering as such with the Office of
Attorney Services and paying the registration fee of $350 and a late fee of $50 if the attorney registers after
Sept. 1 in an odd numbered year. If the attorney has been inactive for at least two years, he or she does not have
to make up any continuing legal education deficiency at the time the attorney went inactive.
If the attorney’s name was included on a law firm’s letterhead prior to the attorney going inactive, the attorney
can be designated at “inactive” on the letterhead; however, the attorney cannot be listed as “of counsel” or
otherwise be represented as able to engage in the practice of law.
Notary Commissions for Retired or Inactive Attorneys
Attorney General Opinion, 94-011 provides that an attorney registered as inactive or retired pursuant to Gov.
Bar R. VI, remains “in good standing before the Ohio Supreme Court” for purposes of retaining office as a
notary public under R. C. 147.03 if that attorney meets the standards set by the court for issuance of a certificate
of good standing.
3
The current practice of the court is to issue a certificate of good standing whenever an attorney is not subject to
discipline by order of the Supreme Court, excluding an order of public reprimand, and has no outstanding fees
or restitution ordered by the Court or payable to the Court; is in compliance with Gov. Bar. R. X governing
continuing legal education; and is registered in compliance with Gov. Bar R. VI for the current biennium and all
prior biennia for which registration was required.
An inactive or retired attorney should obtain a new stamp or seal that qualifies “attorney at law” to reflect the
attorney’s current status; i.e. “Attorney at Law (Inactive)” or “Attorney at Law (Retired).”
Selling a Law Practice
Rule 1.17 of the Ohio Rules of Professional Conduct (Prof. Cond. R. 1.17) permits a lawyer or law firm to sell
or purchase a law practice, including the good will of the practice. To avoid any problems, the parties to the sale
should follow Prof. Cond. R. 1.17 explicitly:
• The purchasing lawyer may be an individual or a law firm and the selling lawyer may be an
individual, a law firm, the estate of a deceased lawyer, or the representatives of a disabled or
disappeared lawyer;
• The selling lawyer must sell the practice in its entirety, except where a conflict of interest is
present that prevents the transfer of representation of a client or class of clients;
• The purchasing lawyer cannot purchase the law practice for the sole or primary purpose of
reselling the practice to another lawyer or law firm (i.e., the purchasing lawyer cannot be an
intermediary or acting as a broker for another lawyer or law firm);
• While the selling lawyer and the prospective purchasing lawyer may engage in general
discussions regarding the possible sale of the selling lawyer’s practice, before the selling lawyer
may provide the prospective purchasing lawyer with information relative to client representation
or confidential information, the purchasing lawyer must execute a confidentiality agreement
binding the prospective purchasing lawyer to preserve information relating to the representation
of the clients consistent with Prof. Cond. R. 1.6, as if those clients were clients of the prospective
purchasing lawyer;
• The sales agreement must include a statement that the purchasing lawyer is purchasing the law
practice in good faith and with the intention of delivering legal services to clients of the selling
lawyer and others in need of legal services;
• The sales agreement must provide that the purchasing lawyer will honor any fee agreements
between the selling lawyer and clients of the selling lawyer relative to ongoing legal
representation;
• The purchasing lawyer may negotiate fees with clients of the selling lawyer for legal
representation commenced after the date of sale;
• The sales agreement may reasonably limit the ability of the selling lawyer to reenter the practice
of law, including but not limited to, the ability of the selling lawyer to reenter the practice of law
for a specific period of time or to practice in a specific geographic area, unless the selling lawyer
is selling the practice to enter academic, government, or public service or to serve as in-house
counsel to a business;
4
• Prior to completing the sale, the selling lawyer and the purchasing lawyer must give written
notice to the selling lawyer’s clients (for the purposes of Prof. Cond. R. 1.17, clients of the
selling lawyer include all current clients and any closed files that the selling lawyer and the
purchasing lawyer agree to make subject to the sale);
• The notice shall include the following:
Ø The anticipated effective date of the proposed sale;
Ø A statement that the purchasing lawyer will honor all existing fee agreements for legal
representation that is ongoing at the time of sale and that fees for legal representation
commenced after the date of sale will be negotiated by the purchasing lawyer and client;
Ø The client’s right to retain other counsel or take possession of case files;
Ø The fact that the client’s consent to the sale will be presumed if the client does not take
action or otherwise object within 90 days of the receipt of the notice;
Ø Biographical information relative to the professional qualifications of the purchasing
lawyer, including but not limited to applicable information consistent with Prof. Cond. R.
7.2, information regarding any disciplinary action taken against the purchasing lawyer,
and information regarding the existence, nature and status of any pending disciplinary
complaint certified by a probable cause panel pursuant to Gov. Bar R. V, Section 11.
• If the seller is the estate of a deceased lawyer or the representative of a disabled or disappeared
lawyer, the purchasing lawyer must provide the written notice;
• The written notice shall be provided by regular mail with a certificate of mailing or other
comparable proof of mailing;
• In lieu of providing notice by mail, either the selling lawyer or the purchasing lawyer, or both,
may personally deliver the notice to a client, provided that the lawyer delivering the notice shall
obtain written acknowledgment of the delivery from the client;
• If written notice cannot be given to a particular client, the representation of that client may not be
transferred until after the selling lawyer and the purchasing lawyer have caused notice of the
sale to be made by at least one publication in a newspaper in the county of sale (or an adjoining
county if no newspaper is published in the county of sale) can be given (the client’s consent to
the sale is presumed upon completion of the publication);
• Neither the selling lawyer nor the purchasing lawyer shall attempt to exonerate the lawyer or
law firm from or limit liability to former or prospective clients for any malpractice or other
professional negligence;
• The provisions of Prof. Cond. R. 1.8(h) relating to malpractice liability shall be incorporated into
the sales agreement; and
• The selling lawyer or the purchasing lawyer may agree to provide for the indemnification or
other contribution for claims of malpractice or other professional negligence.
Attorneys contemplating the sale or purchase of a law practice should familiarize themselves with Prof. Cond.
R. 1.17 including the Comments. Any questions concerning compliance with Prof. Cond. R. 1.17 can be
addressed to the Board of Professional Conduct of the Supreme Court of Ohio.
5
About the Author
Wayne M. Rice is general counsel for the Akron Bar Association, where he provides
guidance and administrative oversight for the Grievance, Fee Arbitration, Bar Student and
Applicants and Unauthorized Practice of Law committees and represents the bar
association before the Board of Professional Conduct and the Board of Commissioners on
Character and Fitness. He speaks frequently on topics related to the Ohio Rules of
Professional Conduct, the Ohio disciplinary system, character and fitness, ethics and
professionalism. Admitted to practice in 1976, Rice served a significant portion of his
career as in-house counsel for several Akron area financial institutions, including a
community savings banks that he helped organize. In addition to his duties as legal
counsel, his responsibilities included corporate governance and compliance management. He also has
experience as a solo practitioner and with small firms where his practice was primarily in the areas of business
organization, estate planning and probate and trust administration. Rice earned his law degree from the
University of Akron School of Law.
6
Pro Bono Practice In Retirement
By E. Jane Taylor
Introduction
Before providing a framework for a meaningful and satisfying experience with pro bono legal work in
retirement, allow me to make some general observations, strictly my own, about retirement itself.
At some point in most legal careers, retirement comes into view and, whether you decide for yourself the time is
right, or the decision is thrust upon you by, for example, a firm’s mandatory retirement policy, remember that
nothing lasts forever and those who are able to embrace change are setting themselves up to thrive in retirement.
If at first your routine feels like an extended staycation, don’t panic and sign up for a lot of activities after a few
days of having nothing on your schedule. Give yourself time to settle in, find your footing and get comfortable
with the idea that you are likely not going to go broke.
Think about how connected you want to remain with your profession and what parts of your legal career
brought you the most satisfaction. Whatever those parts were, there is a way to do pro bono work that will
match those sources of satisfaction.
Ohio’s Pro Bono Guiding Principles
The Ohio Supreme Court’s guidance on an attorney’s professional obligation to provide pro bono legal services
is outlined in the Preamble to the Ohio Rules of Professional Conduct, adopted in 2007, and in the Statement
Regarding the Provision of Pro Bono Legal Services by Ohio Lawyers, announced separately in September
2007. The principles apply equally to pro bono work during the active practice of law and in retirement.
The preamble generally describes responsibilities and states in Section 21, under the subheading “Scope,” that
the preamble provides “general orientation.” Section 14 of the same preamble points out that imperatives are
identified by use of the words “shall” or “shall not,” while use of the terms “may” or “should” are permissive.
Therefore, the language in Section 6 of the preamble, which specifically addresses pro bono legal services, is
aspirational.
Section 6 of the preamble states “…all lawyers should devote professional time and resources and use civic
influence to ensure equal access to our system of justice for all those who, because of economic or social
barriers, cannot afford or secure adequate legal counsel.” The Supreme Court grants each lawyer the discretion
to carry out this professional responsibility in whatever manner is best suited to the lawyer’s particular situation.
When the Ohio Supreme Court adopted the Ohio Rules of Professional Conduct in 2007, it declined to adopt
Model Rule of Professional Conduct 6.1, which sets forth a specific aspirational guideline of 50 hours of pro
bono legal services per year. The court instead issued the statement, which broadly encourages pro bono work
instead of setting any specific recommendations or guidelines. The statement describes in greater detail the
court’s perspective on the need for pro bono legal services in Ohio and “strongly encourages each Ohio lawyer
to ensure access to justice for all Ohioans by participating in pro bono activities.”
7
Neither the Rules for Professional Conduct nor the Statement Regarding the Provision of Pro Bono Legal
Services by Ohio Lawyers includes “pro bono legal services” as a defined term. Instead, what constitutes pro
bono legal services may be extrapolated from the statement to include civil legal services to persons of limited
means, legal counsel to charitable organizations that may not be able to pay for legal services, or financial
contributions to an organization that provides legal services to persons of limited means.
A frequent joke among attorneys is, “I already do a lot of pro bono work for clients who don’t pay me!” While
the joke may be tongue in cheek, or perhaps a truth said in jest, it is not considered pro bono work if a client
does not pay and there is no agreement in advance to represent the client at no charge. However, as set forth in
Comment 4 to Model Rule of Professional Conduct 6.1, if a client becomes unable to pay the legal fees before
the representation is concluded, and the attorney agrees to continue the representation pro bono, the work
performed after the agreement can be considered pro bono legal services.
The guidance on pro bono work for Ohio lawyers is, and always has been, strictly aspirational. There is no
current indication that pro bono work will ever be imposed on lawyers as a mandatory activity. Given the Ohio
Supreme Court’s strong and continuing interest in ensuring protection of the public, it seems unlikely the court
would sanction mandatory pro bono representation of a client.
Retired Attorney Volunteers Are a Valuable Resource for Pro Bono Organizations
Retired attorneys who remain on active status may provide pro bono legal services to low-income or
disadvantaged clients of their own choosing, providing the attorney continues to meet all the requirements for
the active practice of law, including malpractice insurance or disclosure if no insurance coverage is in place,
compliance with CLE requirements, access to an appropriate place to meet clients and/or take depositions and
the ability to create pleadings and documents.
If a retired attorney chooses to do pro bono work after retirement, it is far easier to volunteer for a pro bono
organization and here’s why:
• Retired attorneys bring with them a wealth of knowledge and experience in a variety of practice
areas which leverage the organization’s core expertise in poverty law.
• Retired attorneys are seasoned and capable of handling clients that are in distress.
• Retired attorneys are useful to an organization, capable of taking on duties like interviewing
clients, supervising law student clerks, editing appellate briefs, taking over a case with staff
support, providing brief advice and legal information to clients or even acting as a “silent
partner” to support a staff attorney on a case or with a practice management issue.
Because retired attorneys are valuable, pro bono organizations can support volunteers by performing the initial
client interview, collecting and compiling any necessary records and documents, providing discrete and time-
limited volunteer opportunities for those who do not want to take on lengthy litigation, providing a place to
meet with clients or take depositions, and providing malpractice insurance coverage and free CLE.
Organizations may also allow attoneys the ability to volunteer without leaving the house or to volunteer
seasonally if an attorney spends part of the year away from home.
8Supreme Court Rules That Facilitate Pro Bono Work in Ohio
Consistent with the Ohio Supreme Court’s interest in promoting and facilitating pro bono work in Ohio, the
court has enacted rules to make it easier for attorneys, including those who are retired, to do pro bono work.
CLE credit for pro bono work is authorized by Gov.Bar X(5)(H) which permits up to one hour of CLE credit to
be awarded for six hours of pro bono work, with no more than six CLE credits per biennium to be earned
through pro bono work.
To qualify for CLE credit, the pro bono work must be assigned, verified and reported to the CLE Commission
by any of the organizations named in the rule or any other organization recognized by the court as providing pro
bono services or programs in Ohio. (A list of recognized organizations may be found here). If a retired attorney
decides to take on a pro bono case or matter that is not referred to them through a recognized organization, then
no CLE credit may be awarded for that pro bono work.
CLE credits for pro bono work must be reported to the CLE Commission annually, as is the case with all CLE
activities. If an attorney wishes to receive CLE credit for pro bono work, at the end of the calendar year the
attorney must complete the first section of the court’s Form 23 and submit it to the organization(s) for whom the
pro bono work was performed. The pro bono organization will verify the number of hours of pro bono work
performed by the attorney, calculate the number of CLE credits earned, and report those credits to the CLE
Commission in the same manner as organizations offering seminars or other activities eligible for CLE credit.
If an attorney intends to request CLE credit for pro bono, it is advisable to maintain a complete record of pro
bono activities as Form 23 requires the attorney to affirm that the attorney has performed the stated number of
pro bono hours. The record may also assist the reporting organization to resolve any discrepancies. As in every
situation in which information is submitted to the court, the court assumes and expects that all actions are
undertaken in good faith.
In 2016, the Ohio Supreme Court created the emeritus pro bono attorney registration category which authorizes
an attorney not otherwise engaged in the active practice of law to provide pro bono legal services only. The
registration category streamlines admission requirements by significantly reducing registration fees, requiring
pro bono organizations to provide malpractice insurance coverage, allowing an attorney to transfer at any time
and without cause to active or inactive status, or transfer from active or inactive status back to emeritus pro
bono. For a retired attorney whose needs or interests may change over time, the emeritus pro bono status
provides maximum flexibility.
Once again, the Supreme Court requires that pro bono work performed by an attorney registered in this category
must be for the benefit of a pro bono organization and uses the same definition of “pro bono organization”
found in the rule on CLE credit for pro bono services.
To qualify for emeritus pro bono status, an attorney must have practiced law for at least 15 years, must not have
been disbarred in another state or allowed to resign with discipline pending, and must not have been disciplined
for professional misconduct in the 10 years prior to applying for emeritus pro bono status.
To apply for emeritus pro bono attorney registration status, an attorney must submit the attorney registration
application required by all attorneys for the current biennium, then register for emeritus pro bono through a
separate application in which the attorney certifies that they meet the qualifications.
9The attorney must also submit a separate certification from a pro bono organization verifying the attorney is
“associated” with that organization, and, finally, the attorney must pay the registration fee, currently $75.00 (a
significant reduction from the active registration fee of $350.00 per biennium). After review, the Office of
Attorney Services will notify the attorney that emeritus pro bono attorney registration status has been approved.
When applying for the first time, the emeritus pro bono registration application must be submitted to the Office
of Attorney Services via a hard paper copy. If nothing has changed when the next biennial registration occurs,
the attorney may simply complete the same registration renewal required of all attorneys registered in Ohio.
Once approved, the rule permits the emeritus pro bono attorney to appear in court and administrative
proceedings and to engage in any other legal activities related to the legal matters in which the attorney is
involved, and the pro bono organization is granted sole discretion to determine whether the attorney will or will
not be supervised. In this rule the court also requires organizations to provide malpractice insurance coverage
for any emeritus pro bono volunteers, although pro bono organizations typically provide malpractice insurance
coverage for all volunteers.
An attorney on emeritus pro bono status may not do any pro bono work other than that which is assigned
through a pro bono organization. If an attorney prepares a will for a friend or advises another nonprofit with
which the attorney is associated, it will be considered the unauthorized practice of law.
In keeping with the court’s strong interest in protecting the public, the emeritus pro bono attorney must meet the
same CLE biennial requirements as an attorney on active status. In enacting this requirement, the court may also
be mindful of the fact that most or all pro bono organizations offer training eligible for CLE credit at no cost to
their volunteers.
An emeritus pro bono attorney may not receive compensation for their pro bono legal services, but the rule
makes clear recovery of statutory fees is not barred provided the fees are paid to the pro bono organization. The
prohibition against receiving compensation also does not bar reimbursement for any costs incurred by the
attorney.
If an emeritus pro bono attorney stops volunteering for the organization which certified the attorney’s
association with that organization, it is required that the attorney, not the organization, so notify the Office of
Attorney Services within thirty days of the end of the relationship. Additionally, the attorney must notify the
Office of Attorney Services if the attorney establishes an association with a new pro bono organization.
An emeritus pro bono attorney retains complete discretion to transition out of the category at any time. The
attorney may do so simply by notifying the Office of Attorney Services that they are withdrawing from emeritus
pro bono status. If that occurs, the attorney then has the option to retire from the practice of law, which is
irrevocable, or transition to either active or inactive status. If transferring to active status during a biennium, the
attorney will be responsible for paying the difference between the emeritus pro bono registration fee of $75.00
and the active registration fee of $350.00. (Conversely, if the attorney transfers from active status to emeritus
pro bono status, there is no refund of the active registration fee).
If an emeritus pro bono attorney transfers to active or inactive status, the attorney may, at any time, return to
emeritus pro bono status provided all the requirements of that status are re-established.
10As an additional safeguard for the public, the court itself may revoke emeritus pro bono status sua sponte and
without a statement of cause by providing notice to the attorney, to the supervising attorney, if any, and to the
pro bono organization.
Pro Bono Organizations Respond to a Pandemic
As described above, pro bono organizations have always provided a wide range of opportunities to fit the needs
of attorney volunteers. When the 2020 pandemic hit, organizations used technology to deliver pro bono legal
services safely. In person advice and information clinics may now be conducted by prearranged phone
appointments and pro bono volunteers may now confer with clients via live chat using screen sharing to look at
a docket or work on a document. Attorneys can also prepare documents at home, receive training or take CLE
courses remotely.
Conclusion
Retirement is the time when, finally, attorneys may let go of all that the active practice of law requires and
instead focus on what brings satisfaction and fulfillment. Pro bono work brings legal help to those who
desperately need it and who are typically grateful to at last find someone who will listen to their stories, know
how to help and go to bat for them. With the support of the Ohio Supreme Court, retired attorneys are an
essential, valuable resource for low-income people and nonprofit organizations who need legal help.
About the Author
E. Jane Taylor retired from the Ohio Legal Assistance Foundation, now known as the Ohio
Access to Justice Foundation, in 2017, where she was the director for pro bono and
communications. Prior to joining the foundation, she practiced law for 25 years at the Akron
firm of Guy, Lammert & Towne, concentrating her practice in commercial litigation,
creditors’ rights and bankruptcy. She was the first female president of the Akron Bar
Association and later served as president of the Ohio State Bar Association.
11Issues Affecting Senior Lawyers
By Scott R. Mote and Nina Corbut
In 2006, 37.3 million Americans were 65 and older; this equates to one in every eight Americans. In 2030 this
number will increase to approximately 71.5 million older persons, which is more than two times the numbers in
2000. It is estimated that a quarter of a million America's practicing lawyers are already over the age of 55. This
number is expected to triple over the next two decades.
People in the United States are living longer than ever before. The average life expectancy is now approaching
80 years. There has been a change in the way our health care system manages its patients, and the focus has
shifted to making our later years healthier and more productive. We are living longer and healthier lives, and
people are postponing retirement for emotional and financial reasons. The legal profession is going to have
attorneys practicing well beyond the previously expected retirement age of 65-70, with many people choosing
encore careers.
Regardless of the area of practice, the aging attorney could have age-related health issues that will impact their
ability to continue to practice law in the same manner in which they have grown accustomed over the years.
Each person is unique, and there is no stereotype as to how we age. Not all age-related changes are harmful or
negative. Scientists suggest that aging is likely a combination of many factors. Genetics, lifestyle and disease all
affect the rate at which we age. The following are some of the issues that older lawyers might face.
Substance Use Disorders
Tolerance
As people age, their bodies metabolize alcohol more slowly. Therefore, older adults have increased sensitivity
to and decreased tolerance for alcohol.
Alcohol
Interactions between medication and alcohol are of particular concern among older adults as they can cause
serious medical and psychological problems.
Drugs
Interactions between medication and other drugs, such as street drugs like marijuana, are of particular concern
among older adults as they can cause serious medical and psychological problems.
Misuse of Prescription Medications/Being Prescribed Too Many Medications
Older lawyers can be at risk of unintentional medication misuse. The simultaneous use of multiple medications
and sensitivity to their effects due to the aging process can be dangerous. When the body gets older, changes in
digestion, liver, and kidney function can affect the way that medications are absorbed and metabolized, which
creates greater risks of physical and mental damage. Other medical factors can affect an older lawyer’s ability to
take medications properly, such as sensory decline, cognitive decline or a mental disorder, and cultural and
linguistic barriers.
12The misuse of medications is common among older adults because they have more chronic medical conditions
and are likely prescribed more medications as they age. Sometimes the physician who prescribes medications
inadvertently does not check for correct, age-appropriate dosages and information on contraindications.
Older lawyers may have several physicians that prescribe different medications who may not know about the
other multiple medications the patients are taking. This can lead to dangerous interactions.
Mental health issues
Mental health implications are a large part of the concern with an aging population in general and especially for
lawyers. While many aging people go through the later stages of life successfully and embrace their new phase
of life, some people experience mental health issues at this time.
Loneliness
Social isolation and loneliness are linked to higher risks of high blood pressure, heart disease, obesity, a
weakened immune system, anxiety, depression, cognitive decline, Alzheimer’s disease, and even death. Older
lawyers who are alone due to the death of a spouse or partner, separation from friends or family, retirement, loss
of mobility, and lack of transportation are at particular risk of loneliness.
Studies show that those who engage in meaningful, productive activities with others tend to live longer, boost
their mood, and have a sense of purpose. These activities can also improve their well-being and may improve
their cognitive function.
Depression
Depression is often the most significant and under-diagnosed mental illness. While depression and suicide rates
among the elderly are significant, depression is not a normal part of the aging process.
Anxiety
Anxiety is a common illness among older adults, though it is often undiagnosed. The most typical type of
anxiety is when an individual is fearful of certain things, places or events.
Older adults with anxiety often do not recognize that they have anxiety, so it goes untreated. Lawyers may also
be reluctant to discuss their feelings because of the stigma associated with it. Others may not seek treatment
because they have suffered from anxiety for most of their lives and believe the feelings are normal.
Untreated anxiety can lead to cognitive impairment, disability, poor physical health, and a poor quality of life.
Fortunately, anxiety is treatable with prescription drugs and therapy.
Suicide
Suicide is more common among older adults than any other age group, accounting for 16 to 25 percent of the
suicides in the United States. However, it is under-recognized and under-treated. Studies have shown that up to
75 percent of older adults who kill themselves visited a physician within a month before their death. The risk of
suicide increases with other illnesses, and when the ability to function becomes limited.
13Cognitive impairment
Symptoms/signs of cognitive impairment include missed deadlines, repeatedly making the same mistakes and
not remembering the first one, confusion, forgetfulness, disheveled appearance, loss of skill set, irritability,
dissatisfied clients, disciplinary problems, family member's concerns, and office staff upset/angry, and court
concerns. Often times family members or other professionals have noticed a significant decline in one's
cognitive abilities. These cognitive changes are referred to as cognitive impairment. Cognitive impairment
occurs when there is a problem with perceiving, thinking and remembering. Physical illness, mental health
issues, alcohol and drug interactions are all possible causes of cognitive impairment.
Once cognitive impairment is identified, it is essential for the person to receive a full medical evaluation to
determine the cause of the impairment. Dementia, Alzheimer's Disease and Delirium are all possible medical-
related issues that need to be ruled out. While there are many qualifiers and sub-types for each of the disorders
listed above it is important to have a working definition of the following disorders.
Dementia
It is important to emphasize that dementia is a syndrome and not a specific disease. It is used as a general term
to identify or label a decline in mental ability that is severe enough to interfere with daily functioning and the
ability to live independently. Numerous conditions can potentially cause dementia besides neurodegenerative
diseases, including brain tumors, brain injuries, nutrition deficiencies, infections, drug reactions and thyroid
related disorders. Some of these dementias may be reversible but many are not. Age, family history, genetics,
lifestyle, diseases, and accidents are the most common risk factors for all type of dementias. The greatest known
risk factor for Alzheimer’s is advancing age. The age at onset is typically after 65, and the likelihood of
developing Alzheimer’s doubles every five years after the age of 65. After age 85, the risk reaches nearly 50
percent.
The development of multiple cognitive deficits manifested by both (1) memory impairment (impaired ability to
learn new information or to recall previously learned information), (2) one (or more) of the following cognitive
disturbances:
a) aphasia (language disturbance)
b) apraxia (impaired ability to carry out motor activities despite intact motor function)
c) agnosia (failure to recognize or identify objects despite intact sensory function)
d) disturbance in executive functioning (i.e., planning, organizing, sequencing, abstracting)
The cognitive deficits listed above each cause significant impairment in social or occupational functioning, and
represent a significant decline from a previous level of functioning. There will be a gradual onset and
continuing decline. In addition, these symptoms are not due to any other central nervous system conditions that
cause deficits in memory and cognition.
Alzheimer’s disease
Alzheimer's Disease is a brain disease that causes problems with memory, thinking and behavior. It is the most
common cause of dementia. It is not a normal part of the aging process, and it is not the only cause of memory
loss. Alzheimer's disease worsens over time and there is no cure. The treatments available try to slow
progression and lesson the symptoms. (Alzheimer's Association).
14Delirium
Delirium is a disturbance of consciousness (i.e. reduced clarity of awareness of the environment), with reduced
ability to focus, sustain, or shift attention. There is also a change in cognition (such as memory deficits,
disorientation, language disturbance) or the development of perceptual disturbance that is not better accounted
for by a preexisting, established, or evolving dementia. The disturbance develops over a short period of time
(usually hours to days) and tends to fluctuate during the course of the day. Lastly, upon evaluation this
disturbance is caused by the direct physiological consequences of a general medical condition.
Where to Get Help
As lawyers, we have a responsibility to protect the public and maintain the integrity of the legal profession, but
what do you do if you witness an attorney or judge who you think is suffering from age-related cognitive
decline? The short answer is to report the person. According to Rule 5.1 of the Model Rules of Professional
Conduct, you must make reasonable efforts to ensure that other lawyers conform to the Rules of Professional
Conduct. That might sound harsh and easier said than done, but remember that you are trying to help not only
the lawyer, but also the clients who might be affected.
Contact the Ohio Lawyers Assistance Program, which can do an assessment or make a referral for one, and help
aging attorneys navigate the difficult process of changing how they practice, or retiring, from the practice of
law.
How OLAP Works
The Ohio Lawyers Assistance Program is a private, non-profit 501(c)(3) organization dedicated to helping
Ohio's judges, attorneys, and law students obtain treatment for substance use disorders and mental health issues.
Since 1991, OLAP has helped judges, attorneys, and law students receive:
• Education about substance use disorder, other addictions and mental illness prevalent in the profession
• Confidential advice about individual problems
• Help arranging and implementing formal interventions
• Help deciding between outpatient, inpatient, and other treatment programs
• Monitoring and aftercare services
OLAP is governed by strong rules of confidentiality and treats depression, mental health disorders, burnout,
substance use disorders, anxiety, gambling disorders, and more.
OLAP gets calls/referrals from colleagues, judges, disciplinary counsel, certified grievance committees,
admissions committees, defense counsel, spouses, children, law school administrators and professors, and the
occasional client. Concerns raised include drinking, illegal and prescription drugs, internet porn, sexual
compulsion disorder, gambling, depression, anxiety, bipolar disorder, anorexia and bulimia, adult attention
deficit disorder, post-traumatic stress disorder ... you name it, it affects our profession.
Once OLAP has established a relationship with a client, the real work begins. We usually meet with each client
individually to diagnose what is going on. We conduct a full confidential substance abuse and mental health
assessment.
15After each assessment, OLAP staff will give recommendations to the client to help them head in a better
direction. We are trying to find out what is going on (diagnosis), and what needs to be done (drug/alcohol
treatment, medical evaluation, psychiatric evaluation, psychological therapy, etc.).
We encourage the person to sign a Recovery Contract with us for a minimum of two years, and up to five years.
The contract requires the client to do whatever it takes to get moving in the right direction. For alcohol/drugs,
this can be inpatient or outpatient treatment, and 12-Step recovery meetings. For mental illness, this can mean
evaluation by a psychiatrist, taking prescribed medications, and individual counseling. We also require
telephone contact with us, often daily early on, and then as the client improves, it can be reduced to one or two
times per week. Whatever the requirements, the client is required to document what he/she is doing, by
providing written verification of attendance at 12-Step meetings, regular reports from therapists, etc.
We are also here for those of you concerned about an attorney or judge in trouble. We also will help you find
the services you need to cope with the stress of dealing with a loved one in distress.
We will often set up and facilitate an intervention. Sometimes we provide information to the caller on how to
approach the troubled person, and that results in a call from a new client.
Create a Positive Environment
Regardless of the issues facing the attorney, it is essential that those involved with the aging attorney create a
positive environment and good rapport. It is essential to uphold the dignity of the individual. We must respect
how much one's self-worth, self-esteem and self-confidence are all connected to their identity of being a lawyer.
This difficult life transition can be made more tolerable if we allow the aging lawyer as much control and input
as possible during this process.
About the Authors
Nina Corbut is director of communications and outreach at the Ohio Lawyers
Assistance Program. Her career as a writer and editor began at the Ohio State
Bar Association (OSBA), where she was responsible for multiple print and
online publications. She is an avid photographer and contributor to
groundsounds.com, a website that features music, art and culture in Columbus
and beyond.
Scott R. Mote is executive director of the Ohio Lawyers Assistance Program,
Inc. (OLAP) where he has been involved for over 35 years, serving as OLAP's
first associate director beginning in 1995, and becoming executive director in
March 1999. In his role, he oversees six other chemical dependency and mental
health professionals. Mote was previously a general practice lawyer and civil
litigator for over 30 years, the last 18 as a founding partner of Harris,
McClellan, Binau & Cox PLL, Columbus, where he is of counsel. He is a
previous recipient of the OSBA's Ohio Bar Medal, its highest award for service
to the profession and the Eugene R. Weir Award for Ethics and Professionalism. He earned his law degree from
Capital University Law School.
16Sale of a Law Practice
By Thomas J. Bonasera
Lawyers, we can sell our practice. Quite a concept. Yet prior to the passage of an ethical rule permitting the
sale, we lawyers were the only profession/business that could not sell our practice.
Most all of the state rules that allow a lawyer to sell a practice including goodwill provided certain conditions
are met, have been modeled after the ABA model Rule, 1.17 adopted by the ABA House of Delegates on Feb.
12, 1990, which amended the Model Rules of Professional Conduct. (See ABA Model Rule 1.17 Exhibit A
hereto.)
Prior to the passage of the ABA Model Rule 1.17 in 1990, various reasons were always given for the
prohibition against selling of a law practice. The most prevalent view, prohibiting lawyers from enjoying the
financial fruits of our labor, was that very sacred right that clients have the ultimate right to choose who their
lawyer will be and, somehow, the sale of one's law practice would interfere with that right.
Although the ABA Model Sale of Law Practice Rule was adopted in 1990, our own Ohio Supreme Court, in an
opinion issued in 1992, (Opinion 92-19 Oct. 16, 1992) stated emphatically that it was improper under Ohio's
then Code of Professional Responsibility for a lawyer to purchase client files and lists from another attorney. In
addition to stating such a transaction would improperly impair a client's freedom to choose counsel since any
change in counsel must first be approved by the client, the court stated that such sale/purchase would violate
then Disciplinary Rule 2-103 (B) by improperly compensating another for a referral. The court further provided
that selling of one's practice would also violate then Rules 4-101B (1) and (3) by failing to preserve, or by using
to another's advantage, client confidences and secrets.
This opinion could not have been a surprise as an earlier opinion by the Ohio State Bar Association’s (OSBA)
Opinion Review Subcommittee likewise opined that lawyers were prohibited from entering into an agreement to
purchase the practice of another lawyer on the basis of a percentage payment from newly opened cases. (See
OSBA Opinion 81-9, issued November 4, 1981, Exhibit B hereto also citing 1945 ABA Opinion 266).
Interestingly though, the OSBA opinion did at least open the door to allowing the sale of one's practice when it
stated,
[I]t would seem that you might be able to structure an agreement in which the amount payable would be
based on services already rendered by the selling attorney. It would not appear that there would be
anything improper if terms of payment of the already computed amount would be based on some
percentage of your own gross receipts from future work, provided, however, that at the end of some
reasonable term the total sum would be due to the selling attorney.
So history was not on the side of permitting the sale of a law practice. It was not until Feb. 1, 2003 that our own
Ohio Supreme Court formally adopted Rule 1.17 Sale of Law Practice Rule (substantially modeled after the
ABA Model rule).
17Clearly our rule, as do most all other state rules allowing the sale of a law practice, does protect that most
important right of a client to choose one's counsel. That right to choose remains paramount, survives and is
protected. Now we, as with all other professions and businesses, can finally sell our practice, if certain
conditions are met.
Rule 1.17 provides that the selling attorney must stop the practice of law, the entire practice must be sold, the
practice may not be purchased for resell, proper notice to clients must be given and the right to choose their
counsel must be preserved.
Before starting negotiations for the sale/purchase, the parties must enter into a confidentiality agreement. No
particular form is required, but the prospective purchasing lawyer/law firm must agree that information relating
to the representation of the clients, confidentiality, must be consistent with Rule 1.6, as if those clients were
clients of the prospective purchasing lawyer. (Rule 1.1(C)). Only then may the selling attorney and prospective
buyer begin negotiations and the sharing of information, financial and otherwise. Rule 1.17(0) requires any final
agreement must contain certain terms. Those terms include, but are not limited to, that the purchasing attorney
must honor all existing fee agreements for ongoing matters. New matters may be separately agreed upon.
The agreement may also allow reasonable, non-competition provisions and provisions that would limit the
selling attorney from the reentering the practice of law for a specific period of time and a specific geographic
area.
I have found no specific case law in an attorney sale of a law practice transaction reviewing terms of a non-
compete agreement, but one can only assume that traditional terms of reasonableness of time and scope that
courts apply to all other types of non-compete agreements might well apply. The required information included
in the notice to clients is set forth in Rule 1.17(E) (1 through 5). A key component to the notice is a client's
consent and that such consent to the sale will be presumed if the client does not take action or otherwise object
within 90 days of the receipt of the notice.
Since the adoption of the Ohio Sale of Law Practice rule, Ohio lawyers now have the ability to enjoy the
financial fruits of their labor rather than just walking away without the opportunity to enjoy the financial
rewards permitted for all other professions and businesses.
While there are nuances and expertise needed in the sale of any business, if our ethical rule 1.17 is followed, not
only does the selling attorney gain, but the clients to whom we all owe our ultimate responsibility also benefit.
About the Author
Thomas J. Bonasera is a partner in the corporate department of Dinsmore & Shohl LLP where
he advises his clients on a broad range of trust and estate planning and litigation matters,
obligations, and liabilities of trustees and other fiduciaries and trust and estate beneficiary
rights and closely held business matters, including business disputes. He is a frequent lecturer
on trusts and estates, fiduciary litigation and administration case law updates, special needs
trusts and planning, wrongful death settlements and notice, Ohio Trust Code, closely held
business matters and disputes, selling and buying law practices, and making the most of your
practice. He earned his law degree from Capital University Law School.
18EXHIBIT A
19EXHIBIT B
2021
The Client File Conundrum
By Amy C. Stone
Since this publication is for lawyers who have gracefully served the profession for many years and may be
considering retirement, a discussion about client file disposition may be relevant. Paper or “hard copy” files are
what generations of lawyers have kept to date. However, advances in technology, including portable, disposable
computers, the internet and cloud storage, will one day render this topic obsolete. “Good riddance,” I say, for it
is a subject that causes much consternation and heartburn.
Today’s prevailing wisdom on client files is simple. When you conclude your representation, make a copy of
any document in the file needed to protect you against malpractice liability. Remove your work product, and
then return the original file to the client. That’s it. You have no obligation to keep a copy of the file for anyone
other than you and your malpractice insurance carrier. Boy, don’t you wish you knew this a decade or two ago?!
You once held onto files with the hope of return business. A growing number of lawyers, coupled with instant
access to them through the click of a mouse, has rendered that model obsolete. Now you’re stuck with a glut of
paper files and face the daunting task of dealing with them before you shutter your practice. In the next few
pages, I will attempt to guide you through the process.
The law provides a framework for my advice. Several Rules of Professional Conduct are relevant. Prof.Cond.R.
1.1 and 1.3 discuss a lawyer’s obligation to competently and diligently practice law. If a lawyer fails to maintain
and dispose of client files properly, that lawyer is not representing clients in a competent or diligent manner. It
is also unlikely that a lawyer who fails to maintain a client’s file properly can keep that client reasonably
informed regarding his or her representation or provide the client with documentation upon request as required
by Prof.Cond.R. 1.4.
Failing to dispose of client files properly raises Prof.Cond.R. 1.6 and 1.9 issues. These rules describe a lawyer’s
duty to maintain client confidences. In the only case dealing with the disposal of client files, the Supreme Court
of Ohio determined that a lawyer who put client files in a public dumpster violated his clients’ confidences in
violation of these rules.1
Prof.Cond.R 1.15 is responsible for a common misunderstanding regarding the length of time a lawyer must
keep a client’s file post-representation. This rule deals primarily with lawyer trust accounts. However, a client’s
“property,” which includes the client’s file,2 is also discussed. Under section (a), records of trust account funds
and “other property” must be kept for seven years after termination. This provision has caused many lawyers to
believe they must maintain client files for seven years post-representation, but this simply is not accurate.
Disciplinary authorities do not interpret this provision to apply to client files; it only applies to fee agreements
and trust account records as enumerated explicitly in the rule. Be advised, however, that the Board of
Professional Conduct (board) is using seven years as the “default” number of years it is suggesting lawyers keep
client files in its “Ethics Guide: Client File Retention.”3 The board further reminds lawyers to be mindful of an
uninsured lawyer’s five-year obligation to maintain the documentation required under Prof.Cond.R. 1.4(c) when
considering how long to maintain client files after termination.4
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