Although subsequent columns will examine the provisions of specific Rules of Professional Conduct and focus on various decisions discussing ethical issues, these initial columns attempt to explore underlying issues, both legal and personal, which frequently form the background for such issues in consumer bankruptcy cases.

Although these columns will address specifically intended violations of the applicable Rules of Professional Conduct or other governing authorities, they will also address the inadvertent, negligent, conscious, but ill-considered and not specifically intended, violations of the Rules of Professional Conduct or other governing authorities. [Brief note, pending a required longer discussion: lack of specific intention is seldom a defense to an ethics violation, merely a mitigating factor in determining an appropriate consequence.]

It should be noted that ethical issues are a constitutive element of the practice of law and, despite all good faith efforts to avoid them, will often present themselves, in a variety of contexts, in consumer bankruptcy cases. All efforts should be made to identify such ethical issues as early as possible, analyze them as thoroughly as possible and take appropriate action as quickly as possible. While the preceding sentence might contain helpful general principles, it lacks specificity, particularly in connection with the issue of – How did this ethics problem happen to me? It should come as no surprise that this simple column will not provide a once-and-for-all answer to that question; however, this column will identify one example which could be helpful in limiting, if not avoiding, the presence of that question in a legal career.

The inaugural column discussed the necessity of according the ethics model priority over the business model. While such a principle compels assent, its application is sometimes less obvious. It should be noted that in consumer bankruptcy practice, the prompt handling of a high volume of cases often yields the greatest monetary return. Accordingly, speed, efficiency, the use of technology to systematize repetitive tasks, delegation of duties, among other ordinarily approved business principles, present themselves as attractive operating principles in a consumer bankruptcy practice. Although such principles have an appropriate place in a consumer bankruptcy practice, the key word is appropriate – more specifically, appropriately subordinated to governing ethical constraints.

For example it may make sound business sense to delegate as many tasks as possible from a lawyer to a non-attorney assistant; however, there are a host of duties which courts have viewed as non-delegable. The simple (simplistic) use of a valid business model of delegation is frequently not appropriate in a consumer bankruptcy practice, constitutes an ethical violation and yields undesirable consequences. As one court noted:

The counseling of a client in financial matters, particularly about his or her choice of remedies under the Bankruptcy Code or whether a bankruptcy proceeding can be avoided, is a serious matter that deserves the attention of a qualified attorney. Such counseling would involve, among other things, the effect of an insolvency proceeding on the client's credit rating, the relative advantages of the Chapter 7 and Chapter 13 remedies, the election to retain, surrender, or redeem property, the dischargeability of and the reaffirmation of debts, the applicability of Ohio's exemption laws, R.C. 2329.66 et seq., the avoidance of liens which interfere with exemptions, the recovery of property which may have been transferred, and the tax effects of a filing.

In this case such counseling and advice were left to an untrained employee who characterized herself as a legal assistant. The Chapter 13 plan, which in some cases should be individually crafted to meet the specific needs of the client, was drafted in this case by the employee. The bankruptcy statement of financial affairs contains words of art, such as "transfers," "insider," and "ordinary course of the business," which the courts constantly define and redefine and which should be analyzed and explained by an attorney in relation to the client's case. In this case an untrained employee prepared and explained the document without the supervision or assistance of an attorney. Finally, we note that respondent's handwritten name followed by "AD" appears on the originally filed documents, including the bankruptcy petition, the compensation statement, and the Chapter 13 plan. Fed.R.Bankr.P. 9011 provides in part, as does our Civ.R. 11, that the signature of an attorney on a document means, among other things, that he has read the document. Respondent neither read nor reviewed the documents.

We expect that even in a high-volume practice where an assistant might prepare some forms, an attorney, such as respondent, would at least interview and counsel his clients before a course of action was chosen and the documents drafted. We also expect that he would appear at the meeting of creditors as an advocate for his clients. In this case respondent not only did not counsel the Smiths or review their documents, he also did not appear to represent them at their meeting with the trustee and their creditors. In fact, respondent did not meet these clients until a hearing on sanctions against him was held eight months after the bankruptcy case was filed.  We find respondent's actions totally unprofessional and an abdication of his duty to his clients. We adopt the board's finding that respondent violated DR 1-102(A)(6) and 6-101(A)(3).

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Since respondent has already been sanctioned by the bankruptcy court, we agree that a public reprimand alone is appropriate as recommended by the board. We adopt that recommendation and respondent is so reprimanded. Costs are taxed to respondent.

Columbus Bar Ass’n v. Flanagan, 77 Ohio St.3d 381, 383-84 (1997).