SALE AND WITHDRAWAL FROM A LAW PRACTICE OUTLINE

By

Thomas J. Bonasera Dinsmore & Shohl, LLP

191 W. Nationwide Blvd., Suite 300 Columbus, Ohio 43215 Phone: 614/227-4263

Fax: 614/221-8590

Email: thomas.bonasera@dinsmore.com

• A 1nsmore Thomas J. Bonasera Partner

Columbus

P: (614) 227-4263 F: (614) 221-8590

thomas.bonasera@dinsmore.com

Thomas Bonasera is a Partner in the C.orporate Department and a member of the firm's

Board of Directors and firm Executive Committee Member. Tom focuses his practice on

trust and estate administration and litigation, estate planning and closely held business

matters. He advises his clients on a broad range of trust and estate planning and

litigation matters, obligations and liabilities of trustees and other fiduciaries and trust and

estate beneficiary rights and closely held business matters including business disputes.

Tom is a frequent lecturer on trusts/estates and fiduciary administration, special needs

trusts and planning and closely held business matters and disputes.

Memberships & Affiliations The American College of Trust and Estate Counsel, Fellow and Prior Fiduciary

Litigation Committee Member

American Bar Association

Ohio State Bar Association, President, 1999-2000; Board of Governors, 1996-1998

OSBA District 7 Delegate, 1988-Present

OSBA Estate Planning, Trust and Probate Law, Section and Eider Law Committee

• Ohio State Bar Foundation, Fellow and Current Board Member

Columbus Bar Association, President, 1993-1994; Board of Governors, 1986-1995;

Professionalism Committee; Securities Law Committee; Probate Court Committee,

Past Chair

Columbus Bar Foundation, Fellow

The Columbus Foundation, Professional Advisory Council

Franklin County Alcohol, Drug and Mental Health Board, Past Board Member

and Past Chair

Ohio Commission on Racial Fairness, Task Force and Ohio Commission on Racial

Fairness, Implementing Task Force Committee Member

National Association of Securities, Panel of Arbitrators

American Arbitration Association, Panel Member and Arbitrator, Commercial Rules

Central Ohio Association for Justice, Member and former Probate Court Committee

Chair (Formerly known as Franklin County Trial Lawyers Association)

The American Red Cross of Greater Columbus, Past Board Member and current

Emeritus Board Member

• Ronald McDonald House Charities of Columbus, Past President and Board Member

Legal Aid Society of Columbus, Board Member and Past President

Education J.D., Capital University School of

Law, (Order of the Curia, 1975)

B.S., The Ohio State University,

(1970)

Bar Admissions Ohio

Court Admissions U.S. Supreme Court

Southern District of Ohio

Related Services Estate & Trust

Estate Planning

Estate Administration

Corporate & Transactional

DINSMORE & SHOHL LLP • LEGAL COUNSEL • www.dinsmore.com

Alzheimer's Association of Columbus, Former Board Member

Columbus Medical Research Foundation, Current Board Member

Ohio Supreme Court, Lawyer to Lawyer Mentoring Program Participant

Ohio State Legal Services Association, Board Member

Distinctions Peer Review Rated AV in Martindale-Hubbell

Listed in The Best Lawyers in America®

• Selected for the Ohio Super Lawyers® List, Top 100 Attorneys in Ohio

Named by Columbus Business First as one of Central Ohio's best lawyers, as voted

by his peers in the areas of trust and estate planning and administration, fiduciary

litigation, closely held business succession and disputes

Top 50 Lawyers Recognition, 2011, Columbus Monthly

Recipient of the Ohio State Bar Association Bar Medal Award (2005} and the

Columbus Bar Association's Bar Service Medal Award

Central Ohio Lawyers for Justice (f/k/a Franklin County Trial Lawyers}, Member and

Past Probate Court Chair

Frequent CLE Lecturer on matters of Special Needs Trusts and Probate Court

• Settlements, the Ohio Trust Code, Closely Held Business topics and Sale of a Law

Practice Rules

DINSMORE & SHOHL LLP • LEGAL COUNSEL • www.dinsmore.com

SALE OF AND WITIIDRA WAL FROM A LAW PRACTICE· OUTLINE

By: Thomas J. Bonasera

Dinsmore & Shohl, LLP 191 W. Nationwide Blvd., Suite 300

Columbus, Ohio 432 J 5 Phone: 6141227 ·4263

f'ax: 614/221-8590 Email: thomas.bonasera@dinsmore.com

I. INTRODUCTION

ll. AR(;UMENTS FOR AND AGAINST ALLOWING PURCHASE AND SALE OF A LAW PRAC.,IICE lEtbieal obligation!!! to tlienb and unernl IU!bUcl

III.

A. Conflict of Interest

B. Fee Splitting

C. Confidentiality

D. Solicitation

E. Restrictive Covenants

BACKGRQUNDIABA MODEL RULE

A. Ohio Opinion -- 92-19

B. OSBA Opinion- 81-9

C. ABA Rule 1.17 - Sale of a Law Practice

D. Agreements Restricting the Practice of a Lawyer, Ohio Rules of Professional Conduct, Rule 5.6: "Restrictions on Right to Practice."

1. Also see ABA Journal, 9/28/08, "[C]ase law in most. .. states gives lawyers the right to mobility." Citing Nixon Peabody, LLP v. de Senilhes, Valsamdidis, N.Y. Supreme Ct., 9/16/08, attached as Exhibit IIID(l).

E. Withdrawal from Employment, Ohio Rules ofProfessional Conduct, Rule 1.16: "Declining or Tenninating Representation"

tV. QHJO RULE- Sale of Law Practice Rule 1.17

A. Stop Practice of Law

B. Sell Entire Practice

C. Not for Resale

403377v3

D. Notice to Clients and Right to Choose

E. Client Protections/Limited Liability

F. Insurance Consolidation

0. Withdrawal From Employment Duties, Rule 1.16: Declining or Terminating Representation

H. Dividing Legal Fees with a Non-Lawyer, Rule 5.4(a)

I. Other States- Examples

1. California 2. Florida 3. Iowa 4. Kansas 5. Michigan 6. Minnesota 7. Missouri 8. NewYork 9. Oklahoma 10. Oregon 11. West Virginia 12. Wisconsin

V. FEE DISPJJTES- A&BITRA TlONIMEDIA Tl9li

A. Division of Fees Among Lawyers, Rule l.5(e)&(t)

B. Schulman v. Wolske & Blue Co., LPA (1998), 125 Ob. App. 3d 365

C. Sample Arbitration Agreement

VI. WITHDRAWAL CONSIDERA1'1Qtf~

A. Sample Tennination Agreement- Attached Example

1. Partnerships -Oral/Written 2. Corporations - Buy/Sell and Close Corporation Agreements 3. LLC -Operating Agreements 4. Employment Agreement

B. The Supreme Court of Ohio, Board of Commissioners on Grievances and Discipline, Opinion 98-5

C. Ethical Obligations \V11en a Lawyer Changes Firms, ABA Opinion 99-414

D. Seigel v. Arter & Hadden, (1999) 85 Ohio St. 3d 171 -Tortious Interference

VII. CONCLUSION

40J377v3

EXHIBIT V(D)

Sample Arbitration Agreement

403377_1

Sample Arbitration Agreement

Any and all disputes arising under the terms of this Agreement, and the Shareholders' association in the practice of law, shall be settled by binding arbitration. Such arbitration shall be in accordance with the Special Rules of Procedures, then in effect, of the Committee on Arbitration of Law Firm Dissolutions and Withdrawals of The Columbus Bar Association. Any disputes arising under this Agreement not within the jurisdiction of the Committee shall likewise be settled by binding arbitration, where the Ohio Rules of Evidence and applicable Ohio and Federal law will control, and where each disputing party designates an arbitrator with said designees selecting the chairperson of the three-member arbitration panel.

188890.1

403377 _I

EXHIBIT VI(A)

Sample Termination Agreement

403377_1

Exhibit VI(A) ·

Shareholder may voluntarily tenninate his employment with the Firm upon not less than thirty (30) days written notice to the Firm and other Shareholders, which notice shall specify an effective date that shall be at the end of a calendar month. In the event of such a voluntary termination of a Shareholder's employment or termination of employment for any other reason, such Shareholder (hereinafter referred to as "Terminating Shareholder") shall not notify clients of the Firm of his termination of employment without the consent of the Finn (which consent shall not unreasonably be withheld) until the clients of the Firm are notified of the termination by the mailing by the Firm of a notice to that effect. The notice provided by the Firm to the Firm's clients shall be subject to review by such Terminating Shareholder, but the contents of such notice shall be determined solely by the Firm.

After mailing of the notices to the clients of the Firm, a Terminating Shareholder may remove ft.les of pending matters upon receipt by the Firm of a written request from the client. In such eveht, such Terminating Shareholder shall reimburse the Finn for all of the expenditures advanced by the Firm on behalf of such client for such pending tnattets and thereafter shall assume all further responsibilities of the client for each such matter. The Firm thereupon shall have no further obligation with respect to the matters evidenced by such files. Thereafter, for clients biJled,-o.nanhom;ly basis·; f:4e Terminating Shareholder shall bill the client for and be entitled to collect for expenditures theretofore advanced by the Firm and services theretofore rendered in connection with the matter, as well as for subsequent services and expenditures. The Terminating Shareholder shall account for and pay the Firm at the time of collection all amounts collected by him with respect to such client until the Terminating Shareholder has fully reimbursed the Firm for all amounts representing all services performed by the Firm with respect to such matters prior to the effective date of his termination. For each file on which a client has contracted with the Firm by a contingency fee agreement where such client elects to have the Terminating Shareholder represent such client, the Terminating Shareholder and the Firm shall apportion fees between the Firm and the Terminatin_p Shareholder based upon quantum meruit when collection is made upon the client's case. The Firm shall be entitled to notify each affected client of the tenns of this billing and collection procedure as set forth in this paragraph.

1 Subject to the applicable ethical requirements and any agreement with the client,

quantum meruit shall be determined based on the pro rata portion of time spent by the Firm and the Terminating Shareholder after his termination of employment with the Firm.

-4-

All fJ.Jes not removed by the Terminating Shareholder shall remain the property of the Finn and the Terminating Shareholder shall have no interest in or further obligation with respect to the matters evidenced by such files; provided, however, that with respect to any specific pending matter, the Firm and the Terminating Shareholder may agree to the performance by the Terminating Shareholder of additional work for compensation upon an agreed basis.

All provisions of this section are subject to the right of each client of the Firm to direct that any and all of the client's pending matters in which the Firm is employed on the effective date of tennination shall be handled for the client by the continuing Firm rather than the Terminating Shareholder.

-5-