Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Ohio opinion reprimanding a lawyer for filing a defamation action against the wrong party without conducting an investigation, refusing to amend when advised of the error, and failing to respond to the subsequent Bar complaint. The opinion is Ohio Disciplinary Counsel v. Lehmkuhl, Slip Opinion No. 2013-Ohio-4539 (October 16, 2013). The disciplinary opinion is here: https://www.sconet.state.oh.us/ROD/docs/pdf/0/2013/2013-Ohio-4539.pdf
According to the opinion, the lawyer filed a defamation complaint in 2009 on behalf of himself, his wife, and Arlene and Timothy J. McAfee alleging that the named defendants, Joseph and Amanda Erb, and alleged that they were a married couple. The complaint stated that they had been interviewed by a local television news crew about the purported treatment of horses owned by the lawyer and pastured by the McAfees and had made numerous false accusations against the plaintiffs with careless disregard as to whether the statements were true, with the intent to defame the plaintiffs.
The answer and counterclaim admitted that Joseph had spoken with the news crew and expressed his opinions regarding the treatment of the lawyer’s horses; however, Amanda was Joseph’s daughter, not his wife, and she had no involvement in the incident. In their motions for summary judgment and for sanctions they again stated that Amanda was not a proper party. According to the opinion, “Despite having been advised as early as January 2010 that he had erroneously named Erb’s daughter as a defendant in the defamation action, (the lawyer) waited until May 4, 2010, to dismiss the claims against her and did not seek leave to amend his complaint until May 6, 2010.”
On March 23, 2010, Joseph Erb filed a Bar grievance against the lawyer; however, the Bar dismissed it in May 2010 and advised him that he could file it again at the conclusion of the underlying litigation. “During settlement negotiations in the defamation case, (the lawyer) attempted to condition the dismissal of his civil case on the Erbs’ agreement to abandon their grievance against him. After he was advised that such a condition would violate ethical rules, however, he settled the case without any limitations on the Erbs’ right to pursue their disciplinary grievance. Mr. Erb refiled his grievance in April 2011.”
The lawyer requested an extension of time to file a response; however, he never provided any response. “Two days after the lawyer’s father-in-law died, (Bar counsel) sent a second letter by certified mail requiring a response. Though he received the letter, he did not respond due to the family turmoil surrounding his father-in-law’s death. He also failed to appear for a deposition in (the Bar’s) office after being personally served a subpoena duces tecum because the date did not get placed on his calendar.”
The opinion accepted the stipulation between the parties and imposed a public reprimand on the lawyer “for initiating a defamation action without adequately investigating the identity of the proper defendants, failing to timely amend his complaint when he learned that he had misidentified one of the defendants, and failing to cooperate in the ensuing disciplinary investigation.
Bottom line: This lawyer has hopefully learned a few lessons from his unfortunate experience: 1) lawyers must conduct an adequate investigation before filing a lawsuit, particularly a defamation lawsuit, 2) lawyers are not permitted to condition the settlement of a lawsuit on the withdrawal of a lawsuit, and 3) lawyers should always respond to a Bar complaint.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670