05/26/2004 Meeting Minutes - Laserfiche WebLink

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Special Council Minutes of 5/26/2004 that there was comfort in the lawsuit being defended in-house by the city Law '""~' Department at that time. Subsequent events have arisen, and he has provided those to Council in executive session. Those events call upon him to do the ethical thing under the lawyers code of professional responsibility. Practicing law in the State of Ohio is not a right, but it is a privilege. That privilege is regulated by the Ohio Supreme Court who imposes a code which governs conduct in all representations. The code primarily talks about ethical considerations and disciplinary rules. Ethical considerations are things attorneys should consider strongly when they take on representations and they represent individuals or municipal corporations. Disciplinary rules are very tight, and they are not allowed to violate them. The preface to the code reads, "The disciplinary rules, unlike the ethical considerations, are mandatory in character. The disciplinary rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action." He takes this very seriously. Whenever there are questions regarding representation, he looks back to the code to see whether or not he can initiate representation or whether or not he can continue to represent. As indicated to Council in executive session, events have occurred that cause him, as the city's lawyer, to have serious concerns that, if he continues on with this representation„ he could be violating several of the disciplinary rules. The rules in question include 2-110(C)(lxd), which indicates, when a client engages in conduct which makes it unreasonably difficult for the lawyer to continue, that is grounds for seeking permissive withdrawal from representation. He has indicated that as one of his grounds for seeking to withdraw from this representation. Also, disciplinary rule 5-101(A)(1) which states, "Except with the consent of the client after full disclosure, a lawyer shall not accept employment..." and it's implied within there, or continue with employment, "if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's financial, business, property, or personal interests." His job is to defend the city and the city's officials. If things have developed within the case which put him in the position of defending himself, then he shouldn't be representing the city in that matter. Rule 5-102, withdrawal as counsel when lawyer becomes a witness, which essentially states that, if you become aware that you may become a witness in the litigation or related litigation, you should withdraw. Finally, DR 5-105 which talks about representing multiple clients in a representation. The basic rule is that with multiple representations, you talk to the clients and you get their consent and you make sure that it's obvious that you can continue to go on and represent all of them fairly. Because of events that have arisen in this particular case, it's no longer obvious to him that he can go on and continue to represent the city, the Safety Director, the Clerk of Council and the Police Chief and take care of all their inrterests. There have been a divergence of interests that have developed. He has discussed those in more detail in executive session with City Council. For all those reasons, he believes he has been placed in a position where now he has to get out of the case and he has to recommend to Council to hire outside counsel. Mr. Dial said it sounded reasonable to him but wondered if some of this wasn't known earlier as Mr. Dubelko had been originally named as a defendant and then removed. Has he been put back on as a defendant? Law Director Dubelko said he is not back on as a defendant. At the time this lawsuit was fled, he thought it was more or less a friendly lawsuit. There ,~, was a legal issue to be decided, and even though it was being brought by the Mayor in his individual capacity, he could stay on and defend the public records advice that he had