Proposed Ohio attorney "safekeeping" rule changes

The Ohio Supreme Court has announced that it will be accepting public comment on a proposed rule change to an attorney's duty to safeguard client funds and property in which third persons claim an interest until Sept. 30.

The proposed amendments to Professional Conduct Rule 1.15(d) and Comment [4] -- specifying that a lawyer must have "actual knowledge" of a third person's interest and that the claimed interest must be "a statutory lien, a final judgment addressing disposition of the funds or property, or a written agreement by the client of the lawyer on behalf of the client guaranteeing payment from the funds or property" -- are based on a 2007 Advisory Opinion issued by the Board of Commissioners on Grievances & Discipline and recommendations issued in late 2008 by a special Ohio State Bar Association committee.



Court’s Announcement

PACER assessment/update

The Federal Judiciary announced Monday that it has undertaken a year-long, comprehensive program assessment to identify potential enhancements to new & existing services access services. ( Here )

Ohio Supreme Court cases & advisory opinions

The Ohio Supreme Court yesterday held that a request for copies of public records involving a juvenile were improperly denied without sufficient explanation as to the denial, but that a chief of police had acted reasonably because a judge had sealed the case. In interpreting 2007 amendments to Ohio's records statutes, which provide that "R.C. 149.43(C)(1) provides for statutory damages of $100 for each business day during which the public office failed to comply with the public-records law, up to a maximum of $1,000. Over ten business days elapsed from the date the mandamus case was filed before appellant received a statutorily sufficient explanation, and the $1,000 maximum award represented 'compensation for injury arising from lost use of the requested information' …"—on the other hand, pointing to specific language in the amended statute making attorney fee awards mandatory only in cases where a public office makes no response at all to a records request, or where the office promises to disclose records by a specified deadline and fails to do so. [ Opinion and Summary ]

In a second case, the Supreme Court held that "its 2006 decision in State v. Foster did not sever (invalidate) the provision of state law that authorizes enhanced criminal sentences for repeat violent offenders (RVO), and that a trial court does not violate a defendant's right to a jury trial when the judge designates a defendant as an RVO based on relevant information about the offender's prior convictions that is part of the judicial record. [ Opinion and Summary ]



Last Thursday it upheld the state's "Freedom of Residency Act" with a set of four cases each referenced to its precedent set last June in State v. Lima.

The Cities of Toledo, Cleveland, Dayton, and Warren had questioned the constitutionality of ORC §9.481 which the act created back in May 2006. R.C. 9.481 states that "no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state." [ SB 82 (2006) ]

Writing for the majority in State v. Lima, Justice Paul Pfeifer "cited specific language in Section 34, Article II of the Ohio Constitution stating that the General Assembly may enact laws 'providing for the comfort, health, safety and general welfare of all employees [sic]; and no other provision of the constitution shall impair or limit this power,'" the Court’s summary in that case said. "In light of this language, he wrote, a finding that the legislature enacted R.C. 9.481 for the 'general welfare' of public employees pursuant to Section 34 precludes further analysis of the statute under any other provision of the constitution such as the home rule provisions of Article XVIII, because the only purpose of such analysis would be to 'impair or limit' the General Assembly's exercise of its power under Section 34."


And yesterday, two advisory opinions from the Supreme Court of Ohio's Board of Commissioners on Grievances & Discipline set forth guidance on outsourcing legal or support services and whether a newly appointed domestic relations magistrate can continue to serve as a city council member were released (Court's Release )

• Opinion 2009-6 finds that the Ohio Rules of Professional Conduct do not prohibit an Ohio lawyer or law firm from outsourcing legal or support services domestically or abroad . The opinion cautions, however, that applicable rules do impose significant ethical requirements.


• Opinion 2009-7 finds that it is improper under the Ohio Code of Judicial Conduct for a newly appointed full-time or part-time domestic relations court magistrate to continue serving out a term as an elected member of city council.

The Ohio Supreme Court posts advisory opinions from 1986 on in Word format, but reminds viewers that the Supreme Court adopted the its Rules of Professional Conduct Aug. 1, 2006, effective Feb. 1, 2007, which superseded the Ohio Code of Professional Responsibility, adopted Oct. 5, 1970 and as amended throughout the intervening years. Advisory Opinions numbered 1986 through 2006 provide advice for attorneys and judges as to the application of the Ohio Code of Professional Responsibility, which those numbered 2007 and forward provide advice as to the application of the Ohio Rules of Professional Conduct.

Cellphone/Texting legislation

It's almost axiomatic – philosophically, at least – that mankind's technological advances & evolution will always out-pace his own. Somewhere along the line, the law often comes in.

An article in last Thursday's Columbus Dispatch said, "the issue du jour for Ohio legislators appears to be making sure drivers keep their eyes on the road, and not on a cell phone with legislators having introduced six bills in the past four months dealing with cell phones & driving. [ i.e.,See HB 261, HB 262, HB 266, HB 270, and SB 160 ]

An earlier, Dayton Daily News article two weeks ago, said "With the use of cell phones and text messaging exploding across the country, states are scrambling to combat these potentially dangerous distractions to drivers trying to navigate crowded highways and streets," noting that "so far, 17 states and the District of Columbia have banned text messaging while driving, and six of those states along with Washington, D.C., have also outlawed the use of hand-held cell phones altogether while behind the wheel," according to the Governors Highway Safety Association. [ The Governors Highway Safety Association’s website has a summary & table of state laws restricting cell phone use ]

Six states permit individual jurisdictions, such as cities, townships & counties, to pass such local laws barring cell phone use while driving, while another 8 states, such as Kentucky, specifically prohibit it, according to the Governors' Highway site. The City of Cleveland, for instance, passed such an ordinance last July banning texting while driving, and the 7th. Circuit Court of Appeals, on August 13th. agreed with its district court that "a class action mounting a constitutional challenge to the 2005 city law 'has no legs,' and that that law also precludes texting and surfing the Internet while driving." (See Gayle Schor v. Richard Daley, 08-2837 on 08/13/2009 )

New York was the first state to ban cell phone use while driving, back in 2001; the state of Washington was the first to outlaw texting, specifically, while driving.

No state completely bars all types of cell phone use (handheld & hands-free) for all drivers, but six (California, Connecticut, New Jersey, New York, Oregon and Washington), the District of Columbia and the Virgin Islands prohibit all drivers from talking on handheld cell phones while driving, and, with the exception of Washington State, these laws are all 'primary enforcement'— meaning an officer may ticket a driver for using a handheld cell phone while driving without any other traffic offense taking place, according to the Governors' Highway site.

Talking on cell phones or texting while driving is also a matter being addressed by both the United States and British governments on their national levels. A BBC article last year quoted Deputy chief constable Adam Briggs, of the Association of Chief Police Officers, the principal agency in England, Wales and Northern Ireland for developing police agency policy, as saying that the fact that police had issued nearly 165,000 fixed penalty notices to motorists for using mobile phones in 2006 showed how seriously police took the matter. "Any use of a mobile phone while driving is totally unacceptable and we will continue to target drivers who do so," Briggs said. A 2008 study done in Great Britain is also often being referred to.

Senate Bill 1536 here in the United States, introduced July 29th., would "reduce the amount of Federal highway funding available to states that do not enact a law prohibiting an individual from writing, sending, or reading text messages while operating a motor vehicle." Government Technology.com, the beginning of this month, reported, that "Driver use of text messaging and electronic devices will be the subject of a September summit in Washington, D.C., called by U.S. Transportation Secretary Ray LaHood."

State traffic standards

USAToday.com last Wednesday morning reported that many "states were trying to put the brakes on bad driving by targeting 'super speeders,' lane hogs and those guilty of multiple moving violations."

"The moves," the article says, "come as a growing body of evidence suggests that aggressive driving — including speeding, tailgating, changing lanes without signaling, ignoring traffic signals and weaving in and out of traffic — is deadlier than drunken driving. An April study by the AAA Foundation for Traffic Safety found that aggressive driving was a factor in 56% of all fatal U.S. crashes from 2003 through 2007."

Florida is leading the way with a new law that sends its worst drivers back to driving school, while Georgia, to cite a second state, is adding an extra $200 fine to the tickets of "super speeders" — defined as drivers caught traveling more than 75 mph on two-lane roads or 85 mph on any road, according to the article.

The Consumer Financial Protection Agency

Healthcare reform has been getting most of the attention on Capitol Hill and in the national press lately, but for home buyers, sellers, and mortgage applicants, the legislative ballgame will really get underway later in September, when Congress begins work on the proposed Consumer Financial Protection Agency. So begins an L.A. Times article the first part of this month which overviews legislation that would create that agency, now pending in the House and pushed by Financial Services Committee Chairman Barney Frank (D-Mass.), who is its principal author. (See Here )

"The core idea behind the proposal, supporters say, is to pull together consumer oversight powers that are now scattered among various agencies, and to put consumer interests where they should be -- much higher on the priority list than they were during the years leading up to the housing and credit bubble and bust."

"Banking and mortgage trade group leaders generally agree that the existing regulatory system failed badly -- for consumers and the industry itself," the article says. "'We're in favor of better consumer protection,' says Anne Canfield, executive director of the Consumer Mortgage Coalition, which represents major mortgage originators and banks., but how to go about achieving those reforms is where Canfield's group and others part company with the administration and consumer supporters."

Principally, the act would "establish the Consumer Financial Protection Agency as an independent, executive agency to regulate the provision of consumer financial products or services (products or services) under: (1) this Act; (2) consumer finance laws including the Electronic Funds Transfer Act, the Equal Credit Opportunity Act, provisions of the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Home Mortgage Disclosure Act, the Real Estate Settlement Procedures Act, the Truth in Lending Act, and the Truth in Savings Act; and (3) transferred authorities concerning consumer financial protection functions of the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the Federal Deposit Insurance Corporation (FDIC), the Federal Trade Commission (FTC), and the National Credit Union Administration (NCUA)."

Late last Monday, attorney generals from 24 states, including Ohio, sent a letter to the Senate Banking Committee and the House Financial Services Committee, voicing their strong support for the Consumer Financial Protection Agency proposed by the Obama Administration.

The letter in pertinence affirms, "As the chief law enforcement officers of our states, we strongly support legislation to create a Consumer Financial Protection Agency ("CFPA"). The current financial crisis, caused in part by irresponsible subprime lending and inadequate oversight, has demonstrated the need for comprehensive and effective consumer protection and enforcement at the federal level. We believe an independent federal agency combined with joint enforcement by state officials is the best option for meaningful consumer protection in this area."


The Wall Street Journal and New York Times have also had recent articles on the Consumer Financial Protection Agency.

Federal court records:PACER/"RECAP"

Carolyn Elefant, a practicing solo attorney in Washington, D.C., yesterday posted that "PACER, the federal government's system for Public Access to Court Electronic Records, was originally intended to make court filings more accessible to litigants and the public at large. Now, roughly a decade later, Carl Malamud (who Robert Ambrogi, back in February, said believes that all primary legal materials produced by the government should be readily available to the public) and others argue that PACER actually deters access by holding public documents hostage behind an 8-cents-a-page fee wall."

Ms. Elefant's posting continues by saying one more assertive approach "is to turn PACER on its head, which is exactly what The Center for Information Technology Policy at Princeton University is doing with its RECAP the Law project. 'RECAP' -- PACER spelled backwards -- is short for recapture, as in recapturing the law." RECAP, an extension tool for Firefox browsers, automatically "donates" documents purchased from PACER accounts into a public repository hosted by that archive… PACER users, therefore, are building a new, free and open repository of public court records.

Is that even legal? Michael Arrington at Tech Crunch, a weblog "dedicated to obsessively profiling and reviewing new Internet products and companies and existing companies that are making an impact (commercial and/or cultural) on the new web space," recently addressed that question. "The PACER site says 'The information gathered from the PACER system is a matter of public record and may be reproduced without permission.' There is no copyright on these documents. But "PACER also says 'Any attempt to collect data from PACER in a manner which avoids billing is strictly prohibited and may result in criminal prosecution or civil action.' Technically, though, the data isn't being collected from PACER by RECAP users, although they are using the site as a search engine of sorts."

Elefant writes, "RECAP users are paying to collect data; it's just that the data is then being shared with an online repository. In fact, RECAP isn't all that different from commercial services that harvest documents from PACER and then resell them -- except that RECAP provides the documents free. But it seems to me that if the court were going to shut RECAP down, it would have to shut down commercial document harvesters as well."

Be that all of that as it may, RECAP's website yesterday posted that "law professors, librarians, and think tankers praised RECAP."

Two years ago, the Government Printing Office and U.S. Courts' Administrative Office put together what was suppose to be a 3-year pilot project making the PACER system available to the public at no cost through a set of 16 federal depository libraries. But the project was put on hold, pending an investigation into possible security breaches. That's apparently where we still are today. (See articles in July 2009 AALL Spectrum for more information)

Enter RECAP.

While not taking a position on the RECAP project per se, one of the American Association of Law Libraries' long-held public policy positions has been "adequate annual funding to the Administrative Office of the United States Courts for no-fee public access to PACER." (See "Statement to The Obama-Biden Transition Team: Public Policy Positions of The American Association of Law Libraries, December 23, 2008" )

AALL, among others, including Joseph Lieberman, Chair of the Committee on Homeland Security & Government Affairs of the U.S. Senate, have raised concerns that not enough effort has been being made to make PACER records freely available to the public as required by the E-Government Act of 2002. Senator Lieberman, last January, sent a letter to Judge Lee H. Rosenthal, Chair of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, questioning how the federal courts have complied with the transparency and privacy requirements of the E-Government Act.

Government-run or private, "open and accessible federal court documents through the PACER" represents one of the top ten most-wanted government documents according to the March 2009, "Show Us The Data" report by the Center for Democracy & Technology and OpenTheGovernment organization.

Revising Federal Gov't. internet "cookie" policy

The Office of Management & Budget (OMB) is in the process of "considering options for revising the federal government's prohibition on web-tracking technology such as 'cookies,'" with a goal of protecting the privacy of persons visiting federal government web sites while simultaneously making those sites more user-friendly & allow enhanced analytics. (See Federal Register announcement)

The White House's blog back on July 24th., chronicled the federal government's policies with respect to privacy issues and the Internet starting back in 1999, when "cookies" could only be used to collect information from a site if the agency running it gave "clear notice" of that. In June 2000, the general policy was changed to read that "'cookies' should not be used at Federal web sites, or by contractors when operating web sites on behalf of agencies, unless, in addition to clear and conspicuous notice, the following conditions are met: a compelling need to gather the data on the site; appropriate and publicly disclosed privacy safeguards for handling of information derived from 'cookies'; and personal approval by the head of the agency." Now that's being looked at again because, over the course of the last nine years, "'cookies' have become a staple of most commercial websites with widespread public acceptance of their use."

Not much is ever simple & easy in government, though, and, as a Washington Post article, yesterday, said "Even groups that support updating the policy question whether the administration is seeking changes at the request of private companies, such as online search giant Google, as the industry's economic clout and influence in Washington have grown rapidly."

Are Briefs Copyrightable?

Our thanks to the Cleveland Law Library, the Law Librarian Blog, and the Volokh Conspiracy for this one.

"Briefs filed in court are part of the proceeding's official record, but distribution of them by Lexis, Westlaw and other commercial online service providers may infringe on the copyright of their authors," the Law Librarian Blog reported back on July 24th..

"The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there's no clear answer," Eugene Volokh had reported the day before.

"I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It's also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn't open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations."

Quick Clear Law

Removal of highway obstruction: "Ohio Quick Clear Law"
ORC 4513.66

Effective Date: 2008 SB129 12-30-2008


Ohio Department of Transportation on QuickClear

Best Practices

Copyright, Trademarks & 'Fair Use' Eastern Pa. case

A U.S. District Court for Eastern Pennsylvania decision last week made some "important new law and set a few significant precedents in the area of copyrights and trademarks that will help to define the doctrine of 'fair use' for years to come," a Law.com article said this morning.

The case, Warren Publishing Co. v. Spurlock, centered around claims that the 2005 book, “Famous Monster Movie Art of Basil Gogos" violated copyrights & trademarks owned by Warren Publishing.

U.S. District Judge Michael M. Baylson found that "there was a 'transformative nature' to the use of Gogos' paintings in the book because it was designed to be a biography and retrospective of an artist who had created dozens of memorable images of Dracula, Frankenstein, The Mummy, the Creature from the Black Lagoon and other staples of classic monster movies," the article said.

"The fact that the Gogos book is inherently biographical," Judge Baylson wrote, "renders it so fundamentally transformative in nature, coupled with the fact that Spurlock utilized such a quantitatively and qualitatively minor portion of the magazines, requires this court to conclude that Spurlock's use is fair use and to grant Spurlock's motion for summary judgment on the copyright claims."

Ohio casino update

A week after the Ohio Supreme Court rejected election issue claims of track owner Scioto Downs' to have the Ohio's "casino issue" taken off the ballots in November, the Associated Press reported this morning that a bipartisan political committee has now launched its own campaign, claiming "economic development claims made by the Ohio Jobs and Growth Committee to push the casino proposal are overblown, and a plan to allow casinos in Cleveland, Columbus, Cincinnati and Toledo won't create 34,000 jobs or pay an average of $33,000 per job, as claimed." (Article)

The Cleveland Plain Dealer has an article about Harrah’s Entertainment, the largest casino gambling company in the world's, considering Ohio as its next target now that state leaders have embraced expanded gambling – "and Ohio is poised for a gambling explosion," the paper said. " In addition to the plan for slots at racetracks, a constitutional amendment approved for the November ballot could bring four, full-service casinos to Ohio."


Meanwhile…. The Columbus Dispatch reports that Ohio Governor Ted Strickland's office filed a motion to compel the group challenging the authority to authorize the placement of slot machines at the state's seven race tracks, to respond to its discovery requests and make records of contributions & expenses available. In its response, filed this morning, LetOhioVote said in part that, “the discovery (sought) has no bearing on the constitutional issue before the Court… determining whether Relators are supported by 'individuals and entities whose goal is to install casino in the State of Ohio'-has absolutely no bearing on Relators' standing or whether the General Assembly has improperly denied Ohioans their constitutional referendum right."

Ohio casino legislation/litigation update - 2

An attempt by Franklin County horse racing track owner Scioto Downs to have the proposed casino constitutional amendment taken off the ballots in Ohio this November was rejected by the Ohio Supreme Court last Friday.

The Court unanimously held the petition both failed to raise a legitimate constitutional argument and went as far as to acknowledge the efforts made to address areas where there were problems with the process, the Cleveland Plain Dealer reported.

Whether the governor and lawmakers have the power to authorize slot machines without a vote of the people is another matter. That issue's still pending.

FTC "Red Flag Rule" enforcement delayed

The Federal Trade Commission is delaying enforcement of "identity rules affecting lawyers" until Nov. 1st., according to a Law.com article last week. Enforcement, which has already been put off twice before, was to begin Saturday.

"Lawyers, doctors and other professionals have protested the FTC's broad interpretation of 'creditors' to include businesses that bill clients some time after providing services," the article said, with the American Bar Association having threatened to file suit to prevent enforcement. ( See prior articles here & here )

Outgoing ABA President H. Thomas Wells Jr. was quoted as saying, "the FTC's continued assertion that it can, as it sees fit, regulate lawyers under the 'red flags' provisions is troubling, and unacceptable to the ABA. … It undercuts an unbroken history of strong regulation by state bars and supreme courts, and threatens the independence of the profession from federal controls -- independence that is fundamental to the lawyer's role as client confidante and advocate. And it is goes against Congress' intent when the law was passed."