Ohio Reprimands Lawyer For Violation of Rule 7.3(a)

This case, Columbus Bar Assn. v. Bahan, 2020-Ohio-434, decided February 12, 2020, involved a lawyer who learned that a woman had been incarcerated and had been charged with murder. Ms. Bahan visited the defendant in the jail and solicited employment. Although she was not retained, Ms. Bahan was disciplined by the Supreme Court of Ohio for violating Rule 7.3(a) (“a lawyer shall not, by in-person, live-telephone, or real-time electronic contact, solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain”). The facts show an assertive effort to obtain employment in an important case.

{¶ 4}Bahan was admitted to the practice of law in Ohio in 2005 and has never been the subject of disciplinary proceedings in this court. She is a solo practitioner and primarily practices criminal defense, juvenile law, and probate law.

{¶ 5}On March 10, 2017, Kennedy was arrested for the murder of her husband and taken to the Logan County jail. Bahan did not know Kennedy but became interested in the case after learning of the arrest and seeing Kennedy’s picture on the Internet. Bahan thought that perhaps Kennedy had been a victim of domestic violence and that the entire incident had arisen because Kennedy was trying to protect herself. Bahan contacted attorney Marc Triplett to ask him what he thought about her visiting Kennedy in jail. Triplett is an experienced criminal-defense lawyer who is certified to be court-appointed counsel in murder cases. Bahan had worked with Triplett as co-counsel in previous felony cases. Triplett advised Bahan that he did not see any problem with visiting Kennedy for the purpose of assuring that Kennedy’s rights were protected.

{¶ 6}Bahan visited Kennedy at the jail the day after Kennedy’s arrest. Bahan advised Kennedy not to give any statements to the police. She also advised Kennedy that she needed an attorney and that Kennedy needed to consider whether she could afford to retain private counsel. She also explained how Logan County appoints counsel for defendants who cannot afford private counsel. Kennedy told Bahan she was considering hiring Triplett to represent her and asked Bahan to contact Triplett. At a second visit with Kennedy, Bahan brought a proposed fee agreement listing only her name as counsel and also discussed legal strategy with Kennedy. Kennedy was then indicted for murder; her arraignment was scheduled for March 17. Bahan met Kennedy’s daughters and examined the crime scene. At that meeting, Bahan discussed her legal fees and requested a down payment. She also asked Kennedy’s daughters whether they had access to Kennedy’s bank accounts and credit cards and discussed the possibility of selling assets and SUPREME COURT OF OHIO 4livestock, but the parties agree that Bahan asked these questions in part to determine whether Kennedy was eligible for court-appointed counsel.

{¶ 7}When Bahan contacted Triplett as Kennedy had requested, Triplett told Bahan that he could not represent Kennedy. Nonetheless, Bahan filed a notice of appearance in Kennedy’s case as well as a request for a bill of particulars, a motion to preserve evidence, and a demand for discovery. Bahan also visited Kennedy at the jail a final time and there learned that Kennedy knew that Triplett could not represent her. Kennedy told Bahan that she had retained other counsel. Bahan contacted Kennedy’s new counsel to confirm that Kennedy would have representation at her arraignment and withdrew from Kennedy’s case. In a text to the daughters, Bahan indicated that she hoped she would be paid for the work she had performed on Kennedy’s behalf. On April 14, Bahan sent Kennedy an itemized bill in the amount of $1,400; this amount included charges of $300 for the first jail visit and $400 for the second jail visit. Kennedy did not pay the bill, and Bahan did not pursue Kennedy for payment.

Comment: there is a long tradition in the legal profession which frowns upon lawyers who contact prospective clients directly and seek to represent them. (This is the same tradition that frowns upon advertising) This reprimand is consistent with that tradition. Note it is not a violation of Rule 7.3(a) if you know the defendant or if the defendant’s family members contact you and send you to the jail to meet the client or if you are a public defender appointed by the court.

Ed Clinton, Jr.