By Samson Habte
The Ohio Supreme Court Nov. 28 issued a one-year suspension to a lawyer who revealed confidential information he received from a prospective client--doubling the sanction recommended by the disciplinary board (Disciplinary Counsel v. Cicero, Ohio, No. 2012-0278, 11/28/12).
The ruling came in a proceeding that gave the court its first opportunity to apply Ohio Rule of Professional Conduct 1.18, which identifies the duties, including confidentiality, that lawyers owe potential clients who consult but do not retain them.
The court concluded that Christopher T. Cicero violated that rule when he told an Ohio State University football coach that some of his players might be associated with an individual who had been targeted by federal authorities investigating drug trafficking.
Cicero obtained the information from Edward Rife, who met with Cicero after agents raided his home and seized football memorabilia that Ohio State players allegedly gave him in exchange for tattoos.
“This case goes to the very heart of confidentiality between a prospective client and an attorney,” Justice Judith Ann Lanzinger declared on behalf of the court.
According to the opinion, federal law enforcement officials raided Rife's home on April 1, 2010, and seized “$15,000 to $20,000 worth of Ohio State University football memorabilia as part of a drug-trafficking investigation.”
Rife testified that he and a former business partner, Joseph Epling, met with Cicero April 2 to discuss the criminal case. Later that same day, the court said, Cicero sent an email to Jim Tressel, then coach of the Ohio State football team, and alerted him about “a possible association” between Rife and several players on the football team's roster.
Rife subsequently retained a different attorney, the court said, but he and Epling had another meeting with Cicero on April 15.
Cicero gave legal advice at that second meeting, according to a disciplinary panel. Rife provided additional details about his case that should have been treated as confidential, but Cicero relayed this information to Tressel in two emails the next day, the panel found.
In the April 16 emails to Tressel, portions of which the court reprinted in its opinion, Cicero said that Rife told him that a former player “gave him some type of MVP trophy” and that he had dozens of other memorabilia, including “15 pairs of cleats (with signatures), 4-5 jerseys--all signed by players, the 2009 Wisconsin game ball” and about nine “Big Ten Championship” rings.
“If [Rife] retains me, and he may,” Cicero added, “I will try to get these items back that the government now wants to keep for themselves.”
Cicero's messages to Tressel were subsequently publicized and, in June 2011, the lawyer was charged with violating Rule 1.18, which Ohio adopted in 2007 and is closely related to ABA Model Rule 1.18. The Ohio rule states, in part:
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
The disciplinary panel found clear and convincing evidence that Cicero violated Rule 1.18. It also concluded that he contravened Rule 8.4(h), which prohibits conduct that reflects adversely on the lawyer's fitness to practice law. The panel recommended a six-month suspension from the practice of law, and the disciplinary board concurred with that suggestion.
The court affirmed the panel's findings but the majority opted to impose a one-year suspension rather than the recommended six months.
“Prospective clients trust that their confidences will be protected when they engage in an initial consultation with an attorney,” Lanzinger stated. “Cicero's almost immediate dissemination of the detailed information that Rife provided on April 15 directly violated that trust.”
The court acknowledged that the confidentiality protections for prospective clients in Rule 1.18 are more “limited in scope” than those provided to current or former clients in other rules.
For one thing, it said, the comments to Rule 1.18 explain that a person who “communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship,” is not a prospective client.
Another limitation, in Rules 1.18(b) and 1.9(c)(1), is that an attorney does not breach the confidentiality of a prospective client when he discloses information that “has become generally known.”
Cicero contended that he never intended to form an attorney-client relationship with Rife and that the disciplinary panel was wrong in finding that Rife qualified as a “prospective client.” Cicero said he was representing Epling, not Rife, during the meetings he held with the two men.
“We find this argument unpersuasive,” Lanzinger said. Cicero's emails to Tressel “clearly indicate that Cicero believed that Rife was a prospective client,” she wrote.
Cicero also argued that the information that he obtained from Rife and disclosed to Tressel was “generally known.”
The court rejected that argument as well. “A close examination of the April 16 e-mails,” Lanzinger wrote, “reveals that Cicero disclosed not only generally known information--for example, that Rife's home had been raided by federal agents--but also a number of specific details about Rife's case that Cicero could only have learned during his consultation with Rife.”
Accordingly, the court affirmed the disciplinary panel's conclusions that Cicero violated Rules 1.18 and 8.4(h).
But the majority rejected the disciplinary panel's sanction recommendation as too lenient. Numerous aggravating circumstances warrant a one-year suspension from the practice of law, Lanzinger said:
First, Cicero has a prior disciplinary offense for which he was suspended from the practice of law in Ohio for one year. Second, the board concluded that Cicero acted with a selfish motive, because his reason for disclosing to Tressel his possible attorney-client relationship with Rife was for the purpose of self-aggrandizement. Third, the board stated that Cicero's “testimony at the hearing was at times disingenuous and not credible.” Fourth, the board stated that Cicero refused to acknowledge the wrongful nature of his misconduct. Fifth, the board concluded that the disclosure of the information about the Ohio State memorabilia caused Rife and his family to be subjected to criticism and harassment by the news media and others for causing harm to the Ohio State football program.
Justice Evelyn Lundberg Stratton, in a dissent joined by Justice Terrence O'Donnell, argued that “a six-month suspension, all stayed upon conditions,” was a more appropriate sanction.
Cicero was not seeking “personal aggrandizement or personal gain, as found by the majority” when he made the disclosures, the dissenters contended, but instead was motivated by a desire to “alert the coach about misconduct by his players that could affect the team.”
Cicero was represented by John M. Gonzales of the Behal Law Group, Columbus, Ohio. Disciplinary Counsel Jonathan E. Coughlan and Senior Assistant Disciplinary Counsel Joseph M. Caligiuri, Columbus, represented their office.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-92gnek.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
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