Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4044" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2018/08/Hotline-198x300.jpg" alt="" width="198" height="300">In an unusual application of the lawyer-witness rule, a&nbsp;district court&nbsp;<a href="http://filehost.thompsonhine.com/uploads/11-cv-01016_-_Doc_1837_563a.pdf">recently held</a> that the rule&nbsp;would not prevent&nbsp;an assistant state attorney general from being on an open phone line along with the court and other party representatives during the execution of a death-row inmate &mdash; even though the assistant AG might have to testify as a fact witness during the execution.
Open phone line
The inmate, Robert Van Hook, was scheduled to be executed&nbsp;in Ohio&nbsp;for&nbsp;a 1985 murder.&nbsp; He and many other inmates had challenged Ohio&rsquo;s lethal injection execution protocol on Constitutional grounds.&nbsp; He requested that an open phone line be maintained through the course of his execution, and that his attorney, the Ohio assistant&nbsp;AG on the case, and the court be on the line, so that his attorney could move for a temporary restraining order to halt the execution mid-stream if it began to go wrong.
Some executions by lethal injection, including in Ohio,&nbsp;have had serious problems in being carried out. &nbsp;(See <a href="https://www.nbcnews.com/news/crime-courts/alabama-man-who-survived-botched-execution-will-not-face-another-n860376">here</a>, <a href="https://www.nbcnews.com/storyline/lethal-injection/lawyer-calls-aborted-execution-attempt-doyle-lee-hamm-torture-n851006">here</a> and <a href="https://www.daytondailynews.com/news/crime--law/ohio-inmate-whose-execution-was-halted-dies-natural-causes-prison/7CROHKUHKNSHlEPtwhSMCI/">here</a>,&nbsp;for example.)
Lawyer-as-witness issue?
The Ohio Attorney General <a href="http://filehost.thompsonhine.com/uploads/11-cv-01016_-_Doc_1820_0ba7.pdf">objected</a> to the inmate&rsquo;s request, because if the inmate&rsquo;s lawyer moved for a stay or TRO during the execution, &ldquo;an Assistant Attorney General may be placed in the difficult position of becoming a fact witness in order to rebut allegations made by Plaintiffs&rdquo; in&nbsp;the ensuing&nbsp;telephone hearing from the death house.&nbsp; This would create a conflict of interest under Ohio &lsquo;s version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_7_lawyer_as_witness.html">Model Rule 3.7</a>, the Attorney General said, that would require recusal of one or more lawyers.&nbsp; Because of the limited number of assistant AG&rsquo;s familiar with the case, recusal would hamper the ongoing litigation over Ohio&rsquo;s execution protocol, he noted.
The magistrate judge rejected the AG&rsquo;s argument.&nbsp;&nbsp;Ohio Rule 3.7(a)(3) (like the Model Rule)&nbsp;provides that &ldquo;a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless ... the disqualification of the lawyer would work substantial hardship on the client.&rdquo;
A main justification for the bar against acting as a lawyer and a witness in the same cause is confusion for the trier of fact in taking account of these dual roles.&nbsp; But, the judge said, there was little risk of confusing the court under the likely circumstances here.&nbsp; And any possible confusion was outweighed by the substantial hardship to the defendants that would result if the court were to bar testimony from the assistant AG with intimate knowledge of the case, and who was observing the execution, the judge held.&nbsp; Therefore, the open phone line plan would not be impeded by the possibility of disqualification under the lawyer-as-witness rule.
The magistrate judge also held that the purpose of the open phone line &mdash; a possible post-lethal-injection motion for&nbsp;injunctive relief &mdash; was not &ldquo;futile.&rdquo;&nbsp; The court said that Van Hook had the right to challenge his execution as cruel and unusual, and &ldquo;he does not lose that right once the injection begins....&rdquo;
Van Hook&rsquo;s <a href="https://www.cbsnews.com/news/ohio-executes-robert-van-hook-who-strangled-and-stabbed-man-he-met-in-bar-2018-07-18/">execution proceeded without incident</a> on July 25.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Witness to an execution:  no conflict issue for ass’t state AG, says district court