You may not realize it, but under your jurisdiction’s version of Model Rule 3.4(d) you have an ethics duty to make reasonably diligent efforts to comply with legally proper discovery requests. Interpreting a wrinkle in Ohio’s version of the rule, the state supreme court held earlier this month that a violation requires “intentionally or habitually” flouting the requirement — and in an odd twist, the court held that a claimed vitamin-D deficiency didn’t excuse a Dayton lawyer’s failure to comply.
Discovery duties under the ethics rules
Ohio’s Rule 3.4(d), unlike it’s Model Rule counterpart, provides that a lawyer “shall not … in pretrial procedure, intentionally or habitually make a frivolous motion or discovery request or fail to make reasonably diligent effort [sic] to comply with a legally proper discovery request by an opposing party.” The Model Rule does not include the “intentionally or habitually” language.
The Ohio disciplinary case centered on an administrative appeal the lawyer filed in 2012 on behalf of a client seeking workers’ compensation benefits. The appeal was lodged with the county court of common pleas. The lawyer failed to comply with discovery requests, and failed to respond to the employers ensuing motion to compel. Nor did he appear for the hearing on that motion. The court ordered the lawyer to respond to the requests within 5 days or the case would be dismissed, and eventually imposed $5,980 in sanctions. The lawyer failed to submit complete responses and the case was dismissed with prejudice. The lawyer tried to appeal that order, but didn’t file a timely notice of appeal, resulting in the appeal’s dismissal. The lawyer also failed to pay the court-ordered sanctions, including bouncing a check for a partial payment.
Which rule: series qualifier or last antecedent?
The Ohio Supreme Court had to decide for the first time whether the phrase “intentionally or habitually” qualified both “frivolous motion” requests and failing to make “diligent effort to comply,” or whether the phrase only applied to the first clause that follows it. Statutory construction geeks call these opposing canons of interpretation the “series qualifier” rule and the “last antecedent” rule respectively, and choosing which rule applies can drastically affect the outcome of cases.
The court decided without any deep analysis that the words “intentionally or habitually” “serve to modify each clause separately and not just the first clause.” Therefore, to violate the second clause of Ohio’s Rule 3.4(d), a lawyer must intentionally or habitually fail to make reasonably diligent efforts to comply with legally proper discovery requests.
The court easily held that the conduct of the lawyer here violated the rule.
Did Vitamin D deficiency doom diligent discovery?
The lawyer argued that he didn’t receive proper mitigating credit for a personal-health issue that he was experiencing at the time of the misconduct — namely an alleged vitamin-D deficiency “that led to absentmindedness,” and that his own testimony about his condition should have been sufficient to prove mitigation. The court held that the Ohio Rules for the Government of the Bar set a much higher standard than that, requiring, among other things, a diagnosis by a qualified health-care professional, and a determination that the disorder contributed to the cause of the misconduct.
The outcome: an 18-month suspension, with six months stayed on condition that the lawyer pay the sanctions previously ordered.
Even if your jurisdiction’s ethics rules don’t have the “intentionally or habitually” language, it’s worth remembering that your discovery duties aren’t founded solely on the rules of civil or criminal procedure: ethics rules also apply. And by the way, you should get plenty of the Sunshine Vitamin, too.