Wednesday, June 4, 2025
Rover Pipeline LLC v. Patricia Harris, tax commissioner, Case No. 2024-0484
Ohio Board of Tax Appeals
Melissa Eddy et al. v. Farmers Property Casualty Insurance Company, Case No. 2024-0623
First District Court of Appeals (Hamilton County)
Allied Health & Chiropractic LLC et al. v. State of Ohio et al., Case No. 2024-0945
Eighth District Court of Appeals (Cuyahoga County)
Columbus Bar Association v. Brian M. Cable, Case No. 2025-0205
Hamilton County
Was $5.67 Billion Tax Valuation of Natural Gas Pipeline Too High?
Rover Pipeline LLC v. Patricia Harris, tax commissioner, Case No. 2024-0484
Ohio Board of Tax Appeals
ISSUE: Did the Board of Tax Appeals erroneously adopt a $5.67 billion appraisal as the taxable value of the entire Rover Pipeline and $3.67 billion as the taxable value of the Ohio section of the pipeline?
BACKGROUND:
About 10 years ago, a company called Energy Transfer concluded that existing natural gas pipelines from the Marcellus and Utica Shale regions in the eastern United States didn’t provide enough capacity to transport natural gas to areas for use in heating and producing electricity. Energy Transfer created Rover Pipeline, a company to own and build a 713-mile pipeline to transport natural gas from the regions to distribution locations in Ohio, Michigan, West Virginia, and Canada.
Rover estimated that the cost to construct the pipeline would be $4.08 billion. The final construction cost of the pipeline, completed in November 2018, was $6.3 billion. Rover stated that the cost overruns were caused primarily by historically high rainfall, which led to additional unforeseen costs, delays, and inspections stemming from the excessive rain. Another cost overrun resulted from the cleanup of an environmental incident that released drilling fluid into Tuscarawas River wetlands, the company noted.
Rover, as the owner of a natural gas pipeline located partly in Ohio, must pay public utility personal property tax on the pipeline. The base for determining the tax is the true value of the property. For tax year 2019, Rover said the Ohio tax commissioner issued a preliminary assessment valuing the taxable Ohio portion of the pipeline at $3.98 billion. The company appealed the tax commissioner’s assessment to the Board of Tax Appeals (BTA).
Board Adopts Tax Commissioner Expert’s Value of Pipeline
For the BTA proceedings, Rover’s expert submitted valuations of $2.28 billion and $1.79 billion for the Ohio portion of the pipeline.
An expert for the tax commissioner used two methods to value the pipeline. One approach (“income-based”) valued the entire pipeline at $5.12 billion, and another approach (“cost-based”) resulted in a valuation of $6.23 billion. The amounts were averaged, producing a value of $5.67 billion for the entire pipeline, as of December 2018. After adjusting for the sections of the pipeline outside Ohio or exempt from taxation, the expert determined the pipeline’s Ohio taxable value was $3.67 billion.
In a 165-page decision, the BTA adopted the tax commissioner expert’s value. In April 2024, Rover appealed the decision to the Supreme Court of Ohio, which hears appeals of BTA decisions. The case was first referred to mediation, which didn’t resolve the case. Rover asked that the Supreme Court consider the case at oral arguments. The Court granted the request.
Pipeline Argues Unexpected Construction Costs Shouldn’t Be Reflected in Tax Value
Rover contends that with the income-based approach for valuing the pipeline, the calculation incorrectly assessed the value of the company as a business, instead of valuing only the tangible personal property – the pipeline. Certain assumptions made to perform that calculation don’t make sense when valuing physical property, such as a pipeline, which is subject to wear and tear over time requiring repairs or replacement, Rover argues. It maintains that the result was that the pipeline’s value was inflated.
The cost-based approach for valuing the pipeline was also flawed, Rover asserts, because adjustments weren’t made to exclude the excess costs the company incurred only while constructing the pipeline. Rover states that the property’s true value is based on what a buyer would be willing to pay for the pipeline on the open market.
“Historic weather-driven delays and disruptions that drastically and unexpectedly inflated Rover’s construction costs shed no light on true value,” the company’s brief maintains.
Rover notes the BTA found flaws in the analyses and calculations done by both Rover’s expert and the tax commissioner’s expert. The company asserts that, in those circumstances, the BTA should have calculated a value without the errors or instructed the tax commissioner how to produce it. Instead, the BTA adopted the tax commissioner expert’s valuation “apparently because it was the less flawed of the two,” Rover’s brief states.
Rover states that its tax liability based on the BTA’s decision is $215 million for 2019 alone. Rover contends that the BTA decision sends a message from the state to companies deciding whether to build or expand energy projects in Ohio: “If you build it, we will come — for the lion’s share of your income.” The BTA decision should be overturned, and the BTA should order new calculations without the errors, the company concludes.
Tax Commissioner Counters That BTA Thoroughly Evaluated Tax Value
The tax commissioner’s brief asserts that Rover’s estimate of $4.2 billion for the pipeline construction costs were “unrealistically low.” Valuing the Rover Pipeline was an endeavor that was complex and unique, the tax commissioner explains. The commissioner believes that the BTA thoroughly evaluated the evidence and history of the case.
The commissioner rejects Rover’s argument that the costs in excess of its budget should lower the value of the pipeline. The result would be that “any utility operating in Ohio will be incentivized to adopt an unrealistic budget with inadequate contingencies to generate their own ‘excess costs’ to reduce their property’s value,” the commissioner’s brief argues.
The commissioner also contends that Rover’s appeal denies local taxing districts the full amount of taxes that are due to them.
“The taxpayers and local government entities that depend on this revenue should not be asked to subsidize the owners of a brand-new pipeline whose environmental violations and poor budgeting resulted in costs exceeding its budget,” the commissioner writes. “Neither Rover’s unhappiness with the result of this process, nor its and its amicus’ fearmongering about the future of the natural gas industry in Ohio, is grounds for reversal or remand of this appeal.”
The BTA reasonably and lawfully determined the true value of Rover Pipeline, the commissioner concludes.
Tax Case Draws Additional Briefs From State and Local Groups
Amicus curiae briefs supporting Rover Pipeline’s position were submitted by the Ohio Chamber of Commerce and jointly by the Ohio Oil and Gas Association and Ohio Manufacturers’ Association.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Rover Pipeline LLC, c/o Energy Transfer LP: Jonathan Bond, jbond@gibsondunn.com
Representing Patricia Harris, tax commissioner of Ohio, from the Ohio Attorney General’s Office: Samantha Cowne, samantha.cowne@ohioago.gov
Must Insurer Release Claims Settlement Documents After Bad Faith Lawsuit Filed?
Melissa Eddy et al. v. Farmers Property Casualty Insurance Company, Case No. 2024-0623
First District Court of Appeals (Hamilton County)
ISSUES:
- In a lawsuit claiming bad faith by delay in settling an insurance claim, does the attorney-client privilege shield documents from the point the lawsuit is filed or when the insurance claim is settled?
- When an insurer invokes attorney-client privilege during a lawsuit claiming bad faith, must a trial court conduct an in-camera inspection before releasing any documents to the opposing party?
BACKGROUND:
In February 2020, Melissa Eddy and her husband were insured by Metropolitan Property and Casualty Insurance, which was subsequently acquired by Farmers Property Casualty Insurance. Eddy was a passenger in a car her husband was driving when they were struck by Pamela Shooner.
Eddy suffered serious injuries and required major neck surgery. Shooner was insured, but her policy limit for injuries was $100,000. The Eddys policy with Farmers included $250,000 in uninsured/underinsured (UM/UIM) motorist coverage. Sixteen months after the accident, Shooner’s insurer offered to pay the full $100,000 policy limit to settle the claim. The Eddys requested permission from Farmers to accept the settlement, and Farmers agreed about two months later, in August 2021.
The Eddys then requested that Farmers pay the maximum amount of the UIM. After deducting $100,000 received by Shooner, the Eddys sought $150,000 from Farmers. Farmers offered the Eddys $33,312 to settle the claim. The Eddys countered, requesting $148,000, to which Farmers offered $38,000.
Couple Files Two Lawsuits
The Eddys filed the first of two lawsuits against Farmers in August 2021. The couple argued Farmers breached the insurance contract by failing to pay the full amount of UIM coverage. About nine months later, in March 2022, Farmers agreed to pay $150,000 if the Eddys agreed not to pursue a bad faith lawsuit. The Eddys, who had not claimed bad faith at that point, refused to give up the option. A month later, Farmers relented and paid $150,000 without any conditions.
In July 2022, the Eddys filed a second lawsuit against Farmers, claiming it acted in bad faith. The couple maintained they provided all medical information and requested documentation to Farmers when first requesting UIM payment in 2021. The couple claimed Farmers simply “dragged its feet” for 292 days, not requesting any additional information. The Eddys sent a follow-up medical report during the second lawsuit, which only confirmed the existing medical records and bills.
In August 2022, the Eddys made a discovery request from Farmers, including the “complete claim file for the underlying claims” of the auto accident. Farmers produced the claim file but withheld 20 documents created after the Eddys filed the first lawsuit in August 2021. Farmers claimed the documents didn’t need to be disclosed, claiming attorney-client privilege and attorney work-product privilege. Farmers also created a “privilege log,” noting which documents it was withholding.
Farmers stated it had requested that the trial judge conduct an in camera inspection of its withheld documents before requiring any of the information to be released to the Eddys. Farmers claimed the trial judge refused.
The Eddys claimed Farmers missed the deadline to respond to the discovery request, and when they did respond, it was deficient because it cut off information created after August 2021. The Eddys complained to the trial judge that the privilege log was not sufficiently detailed to allow them to challenge the privilege claim.
The Eddys claim the trial judge indicated she would draft a proposed order requiring Farmers to produce the entire claim file up until April 2022, the date Farmers paid the claim, rather than August 2021, when the first lawsuit was filed. The judge then indicated she would review the records and determine if Farmers could withhold documents the company considered privileged.
Believing the judge refused to conduct an in-camera inspection, Farmers appealed the matter to the First District Court of Appeals. The First District ruled Farmers must turn over the claim file with documentation created up until the date the claim was settled in April 2022.
Farmers appealed the decision to the Supreme Court of Ohio, which agreed to hear the case.
Appeals Court Misapplied Precedent, Ignored Statute, Insurer Argues
Farmers argues the First District misapplied a 2001 Supreme Court decision to grant the Eddys the right to the entire claim file up to the date the claim was settled. The First District relied on the Court’s Boone v. Vanliner Ins. Co. decision to determine what information in a claim file must be turned over in bad faith lawsuits against insurers. Farmers explains that in Boone, the issue was an insurer’s denial to cover a claim. The Court ruled that all documents created after denial of the claim were presumedly made in anticipation of litigation challenging the denial. In Boone, the Court found documents after denial were privileged, and the only way a document in the claim file could be released in discovery was after a judge conducted an in camera inspection and ruled the document wasn’t protected by a privilege.
The First District has extended Boone to cover claims settlements, not denials, Farmers asserts. Documents created after the Eddys sought a settlement but before the actual settlement were created with the anticipation that a lawsuit would follow, Farmers argues. And that is what happened, the company notes. The Eddys sued, and the company produced documents as the parties reached a settlement. Those documents created during the first lawsuit, which led to a settlement, don’t have to be released to the Eddys for their subsequent bad faith lawsuit, Farmer argues. If the trial court wants to allow those documents to be turned over, it must conduct an in camera inspection, the insurer maintains.
Farmers also argues that state lawmakers amended R.C. 2317.02 in 2007 to clearly protect the rights of attorney communications during bad faith lawsuits. R.C. 2317.02(A)(2) states that if an attorney is representing an insurance company, attorney communications can only be turned over if the party seeking the information has made a prima facie case showing “bad faith, fraud, or criminal misconduct by the client.” The law also makes the attorney communication “subject to an in camera inspection,” Farmers notes. The Eddys failed to make a prima facie case that Farmers acted in bad faith, so the law doesn’t require the information to be revealed. And if the trial court believed the Eddys have sufficiently alleged Farmers acted in bad faith, it must conduct a closed-door inspection of the records rather than issuing a blanket order requiring Farmers to hand over the entire claim file, the company concludes.
Appeal Is Further “Footdragging,” Couple Maintains
The insurer’s appeal of a proposed order by the trial judge and claims about the misuse of the Boone decision are further evidence of Farmers’ “footdragging” that has persisted in the settlement of the claim, the Eddys argue. The First District didn’t extend Boone but rather applied the precedent of an 18-year-old Second District Court of Appeals decision, which many Ohio courts have relied on since, the couple asserts. In Boone, the Supreme Court explained that in a claim of bad faith by denial, any allegation of acting in bad faith must be actions taken by the insurer before denying the claim. That means the only claim file information the opposing party needs to understand in the decision-making is information up to the date of denial, the Eddys note. However, in other cases, the Supreme Court has ruled that in cases of bad faith claim settlements, actions by the insurance company during the entire lawsuit could be considered bad faith and could include documents in the claim file.
The First District relied on the Second District’s 2006 Unklesbay v. Fenwick decision, which dealt with the allegation of an insurer dragging its feet during a claim settlement. The Eddys argue the facts in Unklesbay are nearly similar, and in that case, the appeals court ruled the documents in the claim file up to the date of settlement should be turned over. The Eddys note Farmers never denied coverage outright but rather dragged their feet for 292 days before agreeing to pay the UIM policy limit. The couple argues they have the right to see what in the claim files justified the delayed action, especially since Farmers requested no further information from the Eddys about the injury or their claim.
The Eddys also claim an insufficient privilege log, which doesn’t provide the opposing party and the trial court enough information to contest the privilege, can result in the insurer's waiver of the privilege. The couple argues Farmers waived its right to conceal the documents because of the minimal documentation in the privilege log and the subsequent acknowledgment that three of the documents weren’t covered by a privilege.
The Eddys also assert that R.C. 2317.02(A)(2) doesn’t protect Farmers in this case. The law protects attorney communications while representing the insurer. The couple isn’t seeking the attorney’s documents in its “case file” as it prepares for a lawsuit. Rather, the couple wants the information in the claim file produced by Farmers that justified delaying the settlement, the Eddys note, and the law doesn’t shield that information from discovery.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the Farmers' position was submitted by the Ohio Insurance Institute. The Ohio Association of Civil Trial Attorneys also filed an amicus brief supporting Farmers. The Ohio Association for Justice submitted an amicus brief in support of the Eddys.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Farmers Property Casualty Insurance Company: Richard Garner, rgarnerl@cruglaw.com
Representing Melissa Eddy et al.: Gus Lazares, gus@rittgers.com
Were Laws That Were Ruled Unconstitutional Reenacted by Later Legislation?
Allied Health & Chiropractic LLC et al. v. State of Ohio et al., Case No. 2024-0945
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Does Ohio’s one-subject rule for legislation allow the General Assembly to “cure” an initially unconstitutional statute by making an amendment to the offending statute?
BACKGROUND:
In summer 2019, the General Assembly passed the state budget bill for 2020-2021. Within the 2,600-page bill was a new provision prohibiting healthcare providers or their agents from directly soliciting crime victims or car accident victims for 30 days. The provision empowered the Ohio Attorney General’s Office to enforce the law, which included potential fines of $5,000 for a first violation and $25,000 for subsequent violations. The law also allowed the professional licenses of violators to be suspended. In addition, the bill contained a new exception in the public records law to prevent disclosure of crime victim or car accident victim telephone numbers listed in law enforcement records.
Before the laws went into effect, a group of chiropractors and related organizations filed a lawsuit against the state in Cuyahoga County Common Pleas Court. The healthcare provider plaintiffs, including Allied Health and Chiropractic, argued that including the new victim solicitation law and the public records exception in the budget bill violated the Ohio Constitution’s one-subject rule for legislation – contending that the laws had no meaningful relationship to state appropriations and spending. The healthcare providers also alleged that their constitutional rights to free speech and equal protection were violated.
In July 2020, the court issued a preliminary injunction to prevent enforcement of the victim solicitation law. While the case was pending in court, the General Assembly passed other bills that amended the victim solicitation law and public records exception.
In June 2023, the court issued summary judgment to the chiropractors and denied summary judgment to the state. The court found the laws were unconstitutional and unenforceable under the Ohio Constitution, and the court issued a permanent injunction prohibiting them from taking effect. The state’s claim that the case was moot because subsequent legislation had amended the new laws was rejected by the court.
The state appealed to the Eighth District Court of Appeals. In a May 2024 opinion, the Eighth District upheld the injunction. The appeals court concluded there was a strong suggestion that the two laws were placed in the budget bill for tactical reasons, and noted that the General Assembly didn’t hold a hearing or collect testimony for or against these new laws during the 2019 legislative process. In addition, the amendments made to the laws and approved in later bills were void because they amended provisions that weren’t constitutionally enacted in the first place, the appeals court stated.
The state appealed to the Supreme Court of Ohio, which accepted the case.
State Argues Later Bills Reenacted Laws That Were Found Unconstitutional
The state appellants – the Ohio governor, state attorney general, General Assembly, Ohio State Chiropractic Board, and Ohio Department of Public Safety – note that the Ohio Constitution explains how bills are passed. When an amendment to a Revised Code section is proposed in a bill, the bill reprints the entire existing section and underlines the proposed language to be added, and strikes through language to be deleted. The bill lists the sections it is amending and then states that the “existing sections” are repealed.
The state maintains that when an existing law is repealed, the law is replaced with the newly amended statute, which consists of the preexisting language, plus the language that was added and minus the language that was removed. The state’s brief contends that the General Assembly “enacts anew any language from the repealed law that it wishes to carry forward into the amended law.” The Eighth District concluded, though, that the bills enacted later that amended the victim solicitation and the public records exception laws after they were found unconstitutional were attempting to amend unconstitutional language, which no longer existed. The state asserts that is wrong.
The state maintains that an amendment to a Revised Code section repeals and completely replaces the entire section of the prior law. The state argues the later enacted bills amending the victim solicitation law and the public records exception reenacted those laws, “curing” the trial court’s finding that the original enactments were unconstitutional.
The state notes that when a statute is found unconstitutional, it isn’t removed from the Revised Code. Any problem with the laws as passed in the 2019 budget bill doesn’t carry over to later legislation that amends the laws, and reenacts existing law, through Ohio’s repeal-and-replace process, the state contends.
“There is one fly in the soup,” the state’s brief notes, which is Stevens v. Ackman (2001). At issue was the General Assembly’s enactment of legislation regarding final appealable orders. The same statute had been included in a sweeping tort reform bill, and the Court in State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999) had struck down all changes in the bill as unconstitutional. In Stevens, the Court held that the final appealable order statute was eradicated by Sheward, the state argues.
The state contends, however, that Stevens doesn’t apply in this case because the Stevens dispute involved the validity of a specific division in the law that was unchanged by the tort reform bill. In this case, though, the legislation approved later amended the same parts of the law that were found unconstitutional by the trial court, the state explains. Given that distinction, the Court could retain Stevens while still ruling that the laws at issue in this case are constitutional, the state argues.
However, if Stevens would apply to this case, then the Court should overrule the decision, the state asserts. The state contends that Stevens ignored the state constitution’s process that repeals an existing Revised Code section and completely reenacts it when the section is amended. In this case, the victim solicitation and public records provisions were revived by amending them – through repealing and replacing the entire Revised Code sections – in the later legislation, the state maintains.
Healthcare Provider Counters That Unconstitutional Laws Can’t Be Amended
Allied Health’s brief maintains that the victim solicitation law and public records exception were “snuck” into the budget bill and received no meaningful public review or committee hearings, where testimony and evidence could have been presented. The healthcare provider notes that a stand-alone bill on the topic had been considered in a legislative session before 2019, and bill never emerged from the Senate committee after witnesses spoke for and against the proposal. This “logrolling” of a substantive bill that involved no appropriations into the budget bill in 2019 is what the state constitution’s one-subject rule is designed to prevent, the healthcare provider maintains.
Then in the later bills that were enacted, the General Assembly improperly presented amendments to the unconstitutional statutes, the healthcare provider maintains. It contends that the original unconstitutional enactment of the laws made them invalid – considered as never taking effect. Amendments adding and deleting the original text, however, conveyed that the prior law was intact – when it wasn’t, Allied Health maintains.
The standard language in legislation that existing sections are repealed simply confirms that the old laws are off the books on the effective date, Allied Health argues. It states that the correct approach would have been for the General Assembly to take the laws as presented in the budget bill and completely reenact them in a separate bill with a clearly expressed single subject and with all the language shown as underlined new language. Then the proposal would go through the legislative process.
The healthcare provider contends there was no conclusion in Stevens that subsequent amendments to a statute will overcome a finding of unconstitutionality. The Eighth District was required to follow the Supreme Court holding in Stevens, which indicated that the legislature’s intention to fully enact or reenact a statute must be readily apparent before an amendment to the law can be considered. However, the legislature didn’t follow that process, Allied Health maintains.
It notes that the subsequent bills that were enacted seemed intended to soften the harsh penalties in the original language and minimize potential intrusions into the free speech and equal protection rights of those who would be restricted. However, the General Assembly didn’t use the proper approach, because the effort undoubtedly would have failed as it did in earlier attempts, Allied Health asserts.
The healthcare provider also maintains that this lawsuit cannot be moot. A “live controversy” remains given that the General Assembly’s legislation involving the statutes and enacted after the 2019 budget bill weren’t intended to, and didn’t, cure the violation of the one-subject rule in their original enactment in the 2019 budget bill, Allied Health argues.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Allied Health & Chiropractic LLC et al.: Paul Flowers, pwf@pwfco.com
Representing the State of Ohio et al. from the Ohio Attorney General’s Office: T. Elliot Gaiser, thomas.gaiser@ohioago.gov
Lawyer Challenges Proposed Suspension for Paying Telemarketers To Acquire Clients
Columbus Bar Association v. Brian M. Cable, Case No. 2025-0205
Hamilton County
A Cincinnati attorney is contesting a proposed suspension from the practice of law based on his payments to referral services for locating auto accident victims and signing them up as his clients. Both the attorney and the bar association investigating the case suggest he receive a public reprimand.
However, the Board of Professional Conduct recommends that the Supreme Court of Ohio suspend Brian Cable for one year with six months stayed. The board stated a more severe sanction is warranted to “protect the public from the unscrupulous use of these ‘marketing’ firms.”
When disciplinary authorities informed Cable that his receipt of accident victim referrals from two Florida-based companies violated the ethical rules for Ohio attorneys, he immediately ended the practice and cooperated with the investigation.
The Columbus Bar Association was investigating another unnamed attorney’s use of the referral services when it discovered payments from Cable’s Cincinnati law firm to one of the services. The Columbus bar conferred with the Cincinnati Bar Association, which also had received a grievance about Cable’s use of the services. The Cincinnati bar obtained an 11-minute recorded phone call between a Columbus accident victim and telemarketers purporting to be staff members of Cable’s firm. The bar associations agreed that Columbus should pursue the case.
Cable admits he violated the rules prohibiting a lawyer from giving anything of value to a person for recommending a lawyer’s services, and from engaging in telephone solicitation of employment when the lawyer’s motive is financial gain. He concedes that he didn’t research the practice enough to ensure his arrangement with the companies followed the rules. Still, he notes that other attorneys disciplined for similar arrangements in the past have received public reprimands and not actual time out of practice.
Cable’s objections to the board’s recommendation triggered an automatic oral argument before the Supreme Court.
Deputy-Turned-Lawyer Unfamiliar With Marketing Rules
Cable spent eight years as a Hamilton County deputy sheriff before attending law school and passing the bar in 2010. He worked with personal injury law firms, including Eric C. Deters & Partners; Kisling, Nestico & Redick; and attorney Gregory S. Young. At those firms, Cable wasn’t involved in the marketing strategies, but through observations of those firms' marketing representatives, he believed that paying for referrals from a marketing company on a per-client basis was permissible under the rules governing attorney conduct.
Cable established his solo practice in Cincinnati, focusing on car accidents, slip-and-falls, and dog bite-related injury cases.
In 2022, Florida-based Bayshore Discoveries approached Cable and offered to market his law practice to potential clients. Bayshore proposed to be paid $75 per matter referred to Cable. Also in 2022, Cable was approached by another Florida firm, Legal Management Services, which also conducts business as Accident Advance & Resource Center. The firm offered to refer clients to Cable for $250 per matter and later raised the price to $300.
Attorney Pays Nearly $200,000 for Referrals
Bayshore and Legal Management conducted similar marketing operations. The referral companies purchase police crash reports from around the nation and acquire contact information for those injured in auto accidents. A company representative calls the injured victim and inquires if they would be interested in being referred to a chiropractor who could provide treatment at no cost to the victim. The firms also ask the victim if they would like to be referred to an attorney who could ensure the at-fault driver’s insurance paid for any medical treatment and lost wages. The firms also offer “pre-litigation loans” of $500, which the total owed to pay it off will be $1,000.
Once a victim expressed interest in being referred to an attorney, a referral firm representative would email the person four documents. Three of the documents were prepared by Cable on his letterhead – an attorney retention agreement, a power of attorney form, and a medical release authorization form. The new client also received a “nonsolicitation agreement,” which stated the client agreed to meet with a member of Cable’s firm and acknowledged they had not been solicited by any person affiliated with the firm or claiming to be a representative of the firm.
Cable indicated he believed that Bayshore and Legal Management had put him on a list of attorneys to potentially be selected by the accident victim. The recorded message obtained by the Cincinnati bar captured the referral company employees holding themselves out to be representatives of Cable’s firm.
In 2022 and 2023, Cable paid Bayshore about $8,300 for 111 client referrals and Legal Management about $191,000 for 695 referrals. In early 2023, the Columbus bar questioned Cable about his relationship with the referral companies. Cable conferred with an attorney and agreed to terminate the relationships in June 2023.
The Columbus bar filed a complaint with the Board of Professional Conduct in July 2024, charging Cable with four ethics violations. In addition to violating the rules against attorney solicitations and paying for referrals, Cable agreed he violated two other rules that require a lawyer to ensure those working on an attorney’s behalf also comply with all professional obligations.
The Columbus bar reported that Cable fully cooperated with the investigation and provided “immense” assistance to the bar association, which has ongoing investigations regarding illegal marketing by Ohio attorneys. Based on Cable’s reputation, assistance, and lack of prior disciplinary actions, the Columbus bar and Cable recommended that he receive a public reprimand.
Board Recommends Suspension
A three-member board panel conducted Cable’s disciplinary hearing. In its report, the panel noted the Columbus bar believes the use of “pay-as-you-go referral companies” is pervasive in Ohio. The panel also expressed concern that Cable was in business with a company routinely soliciting loans with significant repayment costs.
The panel recommended, and the board agreed, that Cable should be suspended for one year, with six months stayed on the condition that he would not commit further misconduct.
Cable doesn’t contest the rule violations but argues an actual suspension is too harsh compared to sanctions issued in past cases to attorneys who violated similar solicitation rules.
Sanction Meant To Send Message to Others, Attorney Argues
Cable argues he and the Columbus bar presented ample evidence demonstrating that a public reprimand was the appropriate sanction. He notes that no clients were harmed by his behavior, and most expressed general satisfaction about his handling of their matters. He also notes that he didn’t split or share fees with the referral companies, but only paid them a flat per-person fee.
Cable explains the purpose of disciplining an attorney is to protect the public, not to punish the lawyer. He argues the board seized on the comments of the bar association’s lawyer during the disciplinary hearing regarding the pervasiveness of the referral practices. The panel questioned the Columbus bar lawyer about the issue and was informed that several investigations were ongoing regarding lawyers not following the referral rules.
Cable argues the board is enhancing the sanction to send a message to other attorneys not to engage in the same practices. He asserts that the information about confidential investigations isn’t evidence and shouldn’t be used to jump from a jointly recommended reprimand to an actual suspension.
Cooperation Justifies Reprimand, Bar Association Maintains
The Columbus bar acknowledges its lawyer informed the panel that this type of conduct is rampant in Ohio and hoped to demonstrate that this is not an isolated incident. The Columbus bar argues the response wasn’t made to escalate the proposed sanction for Cable. The bar association expresses that Cable’s cooperation will help with future investigations and prosecutions of attorneys participating in illegal referral arrangements.
The Columbus bar indicates that it may bring several cases to the board regarding illegal marketing, and the board should reserve harsher sanctions than a reprimand for attorneys who conceal their conduct, refuse to cooperate, or continue to participate in the misconduct after the board has expressed its concerns with the practices.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Columbus Bar Association: Holly Wolf, holly@cbalaw.org
Representing Brian M. Cable: Bryan Penvose, bryan@koblentzlaw.com
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