Dear EE (Ethics Encore): I moved here from Virginia, which requires that lawyers discuss alternative dispute resolution with litigation clients. Does Ohio require that too?
– Ginny Gaughan
Dear Ginny: You know you can’t go wrong discussing ADR with your clients. That is truer than ever now, with trial dockets backed up because of the pandemic. For matters that must be tried, your client may get a quicker hearing by agreeing to submit the matter to arbitration, with the added benefits of privacy, finality, the ability to choose the fact-finder and to get one with subject-matter expertise if needed. I’m sure you’ve seen how a skilled mediator can help parties generate options for resolving their disputes and achieve outcomes that a jury verdict could never deliver. And there are many fans of the collaborative law process through which divorcing couples craft their futures through negotiation, mediation and consultation with skilled professionals.
But back to your question. Currently, there is no ethics rule that expressly requires Ohio lawyers to discuss ADR with their clients. But doing so is consistent with the professional values of competence, communication and independent judgment, and Ohio’s standards of professionalism.
The requirement of competent representation is the first of our Rules of Professional Conduct (“ORPC”). Competent representation requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” (ORPC 1.1). Any lawyer who handles disputes should be familiar with the array of alternate dispute methods used in her field of practice, learn to negotiate and effectively to use mediation for resolving disputes, and understand the benefits and disadvantages of arbitration versus court trials. The importance of a lawyer’s having command of ADR may be signaled by the history and result in Accelerated Systems Integration, Inc. v. Ritzler, Coughlin & Swansinger, 2012-OH-3808 (8th Dist.). The parties to the underlying dispute had been fighting for twelve years, and the malpractice claim had been pending for five years at the time of this decision, in which the court reversed summary judgment for the law firm on a claim based on the lawyers’ failure to invoke the ADR clause of a partnership separation agreement.
Lawyers are expected to exercise independent professional judgment and render candid advice, taking into account any considerations that may be relevant to the client’s situation. (ORPC 2.1). For most clients, those relevant considerations will include the costs and risks of litigation, and the benefits of a negotiated or mediated settlement. And while it is the client’s sole prerogative to determine the objectives of the representation, the lawyer should consult with the client about how to achieve them (ORPC 1.2 (a)). Indeed, a lawyer must “explain a matter to the extent reasonably necessary to permit the client to make informed decisions” about the representation. (ORPC 1.4(b)). The obligation to relay an offer of settlement or proffered plea deal to a client (ORPC 1.4 at Comment ) is just one aspect of this duty. Comment  to Rule 2.1 expressly cautions that “when a matter is likely to involve litigation, it may be necessary [as part of the duty of client communication] to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.” The inclusion of this Comment under a Rule titled “Lawyer as Advisor” reminds litigators that counseling clients is as much a part of their task as advocacy.
Considering and discussing ADR with clients is also prominently featured among the Professional Ideals propounded by our Supreme Court. The Lawyer’s Creed encourages lawyers to pledge to “counsel [clients] with respect to alternative methods to resolve disputes” and to endeavor to achieve [clients’] lawful objectives as expeditiously and economically as possible.”
In sum, a lawyer should always consider whether and how each dispute that she is handling can be positioned for resolution short of trial. And knowing that a client’s enthusiasm for litigation can quickly fade, lawyers will not wait for a judge’s prod or opposing counsel’s first offer to discuss the costs and benefits of a negotiated or mediated settlement with their clients.
Deborah Coleman offers ethics advice, and mediation and arbitration services at Coleman Law LLC. She is a member and former chair of the CMBA Ethics Committee, ADR Section, and Judicial Ratings Committee. She has been a CMBA member since 1977.