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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Ohio Legal Ethics

Prepared By
Jones Day
and
Arthur F. Greenbaum
James W. Shocknessy Professor of Law
Ohio State University College of Law

This summary of the law of lawyering of Ohio has been prepared by Marc L. Swartzbaugh and Brian F. Toohey, of the firm of Jones Day, 901 Lakeside Avenue, Cleveland, Ohio 44114, and by Professor Arthur F. Greenbaum, The Ohio State University, College of Law, (614) 292-4160. Substantial portions of the summary have been excerpted and adapted from Professor Greenbaum's treatise, LAWYER'S GUIDE TO THE OHIO CODE OF PROFESSIONAL RESPONSIBILITY (Banks-Baldwin/West 1996). The summary is transmitted for informational purposes only and not for legal advice. Users should not act upon this information without seeking the professional advice of a lawyer in the applicable jurisdiction. An effort has been made to provide useful information, but the information is not necessarily complete, may be inaccurate, and may not reflect current legal developments. The provider does not warrant that the information is complete or accurate and disclaims all liability to any person for any loss caused by errors or omissions in the summary.

Suggestions for improvements or correction are welcome. Please send them to: Marc L. Swartzbaugh, Jones Day, 901 Lakeside Avenue, Cleveland, Ohio 44114, Tel: 216-586-7242, Fax: 216-579-0212, E-mail: mswartzbaugh@jonesday.com

Copyright in this narrative is held by Jones Day. Copyright in LAWYER'S GUIDE TO THE OHIO CODE OF PROFESSIONAL RESPONSIBILITY is held by the Banks-Baldwin Law Publishing Company, a West Publishing Affiliated Company. Copyright in the full American Legal Ethics Library is held by Cornell University. Questions about redistribution of the library should be directed to: Legal Information Institute, Cornell Law School, Myron Taylor Hall, Ithaca, NY 14853. E-mail: lii@lii.law.cornell.edu

The cutoff date for this edition is December 2010. Consequently, the narrative does not reflect decisions, amendments or other legal developments after that date.


INTRODUCTION

  • 0.1:100 Sources of Law and Guidance
  • 0.2:200 Forms of Lawyer Regulation in Ohio
  • 0.3:300 Organization of This Library and the Model Rules
  • 0.4:400 Abbreviations, References and Terminology
  • 0.4:500 Additional Definitions in Ohio

I. Client-lawyer relationship

  • 1.1 Rule 1.1 Competence
    • 1.1:100 Comparative Analysis of Ohio Rule
    • 1.1:200 Disciplinary Standard of Competence
    • 1.1:300 Malpractice Liability
    • 1.1:400 Liability to Certain Nonclients
    • 1.1:500 Defenses and Exceptions to Liability
    • 1.1:600 Vicarious Liability [see 5.1:500]
  • 1.2 Rule 1.2 Scope of Representation
    • 1.2:100 Comparative Analysis of Ohio Rule
    • 1.2:200 Creating the Client-Lawyer Relationship
    • 1.2:300 Authority to Make Decisions or Act for Client
    • 1.2:400 Lawyer's Moral Autonomy
    • 1.2:500 Limiting the Scope of the Representation
    • 1.2:600 Prohibited Assistance
    • 1.2:700 Warning Client of Limitations on Representation
    • 1.2:800 Identifying to Whom a Lawyer Owes Duties
    • 1.2:900 Threatening Prosecution
  • 1.3 Rule 1.3 Diligence
  • 1.4 Rule 1.4 Communication
    • 1.4:100 Comparative Analysis of Ohio Rule
    • 1.4:200 Duty to Communicate with Client
    • 1.4:300 Duty to Consult with Client
    • 1.4:400 Duty to Inform the Client of Settlement Offers
    • 1.4:500 Duty to Inform Client of Lack of Malpractice Insurance
  • 1.5 Rule 1.5 Fees and Expenses
    • 1.5:100 Comparative Analysis of Ohio Rule
    • 1.5:200 A Lawyer's Claim to Compensation
    • 1.5:300 Attorney-Fee Awards (Fee Shifting)
    • 1.5:400 Reasonableness of a Fee Agreement
    • 1.5:500 Communication Regarding Fees
    • 1.5:600 Contingent Fees
    • 1.5:700 Unlawful Fees
    • 1.5:800 Fee Splitting (Referral Fees)
  • 1.6 Rule 1.6 Confidentiality of Information
    • 1.6:100 Comparative Analysis of Ohio Rule
    • 1.6:200 Professional Duty of Confidentiality
    • 1.6:300 Exceptions to Duty of Confidentiality--In General
    • 1.6:400 Attorney-Client Privilege
    • 1.6:500 Waiver of Attorney-Client Privilege
    • 1.6:600 Exceptions to Attorney-Client Privilege
    • 1.6:700 Lawyer Work-Product Immunity
  • 1.7 Rule 1.7 Conflict of Interest: General Rule
    • 1.7:100 Comparative Analysis of Ohio Rule
    • 1.7:200 Conflicts of Interest in General
    • 1.7:300 Conflict of Interest Among Current Clients
    • 1.7:400 Conflict of Interest Between Current Client and Third-Party Payor
    • 1.7:500 Conflict of Interest Between Current Client and Lawyer's Interest [see also 1.8:200-:220, :1000]]
  • 1.8 Rule 1.8 Conflict of Interest: Prohibited Transactions
    • 1.8:100 Comparative Analysis of Ohio Rule
    • 1.8:200 Lawyer's Personal Interest Affecting Relationship
    • 1.8:300 Lawyer's Use of Client Information
    • 1.8:400 Client Gifts to Lawyer
    • 1.8:500 Literary or Media Rights Relating to Representation
    • 1.8:600 Financing Litigation
    • 1.8:700 Payment of Lawyer's Fee by Third Person
    • 1.8:800 Aggregate Settlements
    • 1.8:900 Agreements Involving Lawyer's Malpractice Liability
    • 1.8:1000 Opposing a Lawyer Relative
    • 1.8:1100 Lawyer's Proprietary Interest in Subject Matter of Representation
    • 1.8:1200 Imputation of (a) through (i) Prohibitions to Other Members of Firm
  • 1.9 Rule 1.9 Duties to Former Clients
    • 1.9:100 Comparative Analysis of Ohio Rule
    • 1.9:200 Representation Adverse to Interest of Former Client--In General
    • 1.9:300 Client of Lawyer's Former Firm
    • 1.9:400 Use or Disclosure of Former Client's Confidences
  • 1.10 Rule 1.10 Imputation of Conflict of Interest: General Rule
    • 1.10:100 Comparative Analysis of Ohio Rule
    • 1.10:200 Imputed Disqualification Among Current Affiliated Lawyers
    • 1.10:300 Removing Imputation by Screening
    • 1.10:400 Disqualification of Firm After Disqualified Lawyer Departs
    • 1.10:500 Client Consent [see also 1.7:240 and 1.9:200]
    • 1.10:600 Imputed Disqualification of Former or Current Government Lawyers
  • 1.11 Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
    • 1.11:100 Comparative Analysis of Ohio Rule
    • 1.11:200 Representation of Another Client by Former Government Lawyer
    • 1.11:300 Use of Confidential Government Information
    • 1.11:400 Government Lawyer Participation in Matters Related to Prior Representation
    • 1.11:500 Government Lawyer Negotiating for Private Employment
  • 1.12 Rule 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
    • 1.12:100 Comparative Analysis of Ohio Rule
    • 1.12:200 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral Representing Client in Same Matter
    • 1.12:300 Negotiating for Future Employment
    • 1.12:400 Screening to Prevent Imputed Disqualification
    • 1.12:500 Partisan Arbitrators Selected by Parties to Dispute
  • 1.13 Rule 1.13 Organization as Client
    • 1.13:100 Comparative Analysis of Ohio Rule
    • 1.13:200 Entity as Client
    • 1.13:300 Preventing Injury to an Entity Client
    • 1.13:400 Fairness to Nonclient Constituents Within an Entity Client
    • 1.13:500 Joint Representation of Entity and Individual Constituents
  • 1.14 Rule 1.14 Client with Diminished Capacity
    • 1.14:100 Comparative Analysis of Ohio Rule
    • 1.14:200 Problems in Representing a Partially or Severely Disabled Client
    • 1.14:300 Maintaining Client-Lawyer Relationship with Disabled Client
    • 1.14:400 Appointment of Guardian or Other Protective Action
    • 1.14:500 Confidentiality Issues
  • 1.15 Rule 1.15 Safekeeping Funds and Property
    • 1.15:100 Comparative Analysis of Ohio Rule
    • 1.15:200 Safeguarding and Safekeeping Property
    • 1.15:300 Holding Money as a Fiduciary for the Benefit of Clients or Third Parties
    • 1.15:400 Dispute Over Lawyer's Entitlement to Funds Held in Trust
    • 1.15:500 Fiduciary Duties Upon Dissolution of Law Firm
    • 1.15:600 Obligations on Sale of Law Practice
    • 1.15:700 Further Safekeeping Obligations
  • 1.16 Rule 1.16 Declining or Terminating Representation
    • 1.16:100 Comparative Analysis of Ohio Rule
    • 1.16:200 Mandatory Declination or Withdrawal
    • 1.16:300 Permissive Withdrawal
    • 1.16:400 Obtaining Permission to Withdraw Under Local Rule of Tribunal
    • 1.16:500 Mitigating Harm to Client Upon Withdrawal
    • 1.16:600 Fees on Termination
  • 1.17 Rule 1.17 Sale of Law Practice
    • 1.17:100 Comparative Analysis of Ohio Rule
    • 1.17:200 Traditional Rule Against the Sale of a Law Practice
    • 1.17:300 Problems in Sale of Practice
  • 1.18 Rule 1.18 Duties to Prospective Client
    • 1.18:100 Comparative Analysis of Ohio Rule
    • 1.18:200 Duties to Prospective Client

II. COUNSELOR

  • 2.1 Rule 2.1 Advisor
    • 2.1:100 Comparative Analysis of Ohio Rule
    • 2.1:200 Exercise of Independent Judgment
    • 2.1:300 Non-Legal Factors in Giving Advice
  • 2.2 Rule 2.2 Intermediary
    • 2.2:100 Comparative Analysis of Ohio Rule
    • 2.2:200 Relationship of Intermediation to Joint Representation
    • 2.2:300 Preconditions to Becoming an Intermediary
    • 2.2:400 Communication During Intermediation
    • 2.2:500 Consequences of a Failed Intermediation
  • 2.3 Rule 2.3 Evaluation for Use by Third Persons
    • 2.3:100 Comparative Analysis of Ohio Rule
    • 2.3:200 Undertaking an Evaluation for a Client
    • 2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion
    • 2.3:400 Confidentiality of an Evaluation
  • 2.4 Rule 2.4 Lawyer Serving as Arbitrator, Mediator, or Third-Party Neutral
    • 2.4:100 Comparative Analysis of Ohio Rule
    • 2.4:200 Obligations of Third-Party Neutral

III. ADVOCATE

  • 3.1 Rule 3.1 Meritorious Claims and Contentions
    • 3.1:100 Comparative Analysis of Ohio Rule
    • 3.1:200 Non-Meritorious Assertions in Litigation
    • 3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)
    • 3.1:400 Civil Liability for Abusive Litigation Practice [see also 1.1:520]
    • 3.1:500 Complying with Law and Tribunal Rulings
  • 3.2 Rule 3.2 Expediting Litigation
    • 3.2:100 Comparative Analysis of Ohio Rule
    • 3.2:200 Dilatory Tactics
    • 3.2:300 Judicial Sanctions for Dilatory Tactics
  • 3.3 Rule 3.3 Candor Toward the Tribunal
    • 3.3:100 Comparative Analysis of Ohio Rule
    • 3.3:200 False Statements to a Tribunal
    • 3.3:300 Disclosing Adverse Legal Authority
    • 3.3:400 Offering False Evidence
    • 3.3:500 Remedial Measures Necessary to Correct False Evidence
    • 3.3:600 Discretion to Withhold Evidence Believed To Be False
    • 3.3:700 Duty to Remedy Criminal or Fraudulent Conduct Related to Adjudicative Proceeding
    • 3.3:800 Duty of Disclosure in Ex Parte Proceedings
  • 3.4 Rule 3.4 Fairness to Opposing Party and Counsel
    • 3.4:100 Comparative Analysis of Ohio Rule
    • 3.4:200 Unlawful Destruction and Concealment of Evidence
    • 3.4:300 Falsifying Evidence
    • 3.4:400 Knowing Disobedience to Rules of Tribunal
    • 3.4:500 Fairness in Pretrial Practice
    • 3.4:600 Improper Trial Tactics
    • 3.4:700 Advising Witness Not to Speak to Opposing Parties
    • 3.4:800 Advising Potential Witness To Leave The Jurisdiction
  • 3.5 Rule 3.5 Impartiality and Decorum of the Tribunal
    • 3.5:100 Comparative Analysis of Ohio Rule
    • 3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official
    • 3.5:300 Improper Ex Parte Communications
    • 3.5:400 Conduct Disruptive of or Degrading to a Tribunal
    • 3.5:500 Disclosure of Improper Conduct by or Toward a Juror
  • 3.6 Rule 3.6 Trial Publicity
    • 3.6:100 Comparative Analysis of Ohio Rule
    • 3.6:200 Improper Extrajudicial Statements
    • 3.6:300 Permissible Statements
    • 3.6:400 Responding to Adverse Publicity
  • 3.7 Rule 3.7 Lawyer as Witness
    • 3.7:100 Comparative Analysis of Ohio Rule
    • 3.7:200 Prohibition of Advocate as Witness
    • 3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)
    • 3.7:400 The Advocate-Witness Rule and Government Lawyers
  • 3.8 Rule 3.8 Special Responsibilities of a Prosecutor
    • 3.8:100 Comparative Analysis of Ohio Rule
    • 3.8:200 The Decision to Charge
    • 3.8:300 Efforts to Assure Accused's Right to Counsel
    • 3.8:400 Seeking Waivers of Rights from Unrepresented Defendants
    • 3.8:500 Disclosing Evidence Favorable to the Accused
    • 3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials
    • 3.8:700 Issuing a Subpoena to a Lawyer
    • 3.8:800 Making Extrajudicial Statements
    • 3.8:900 Peremptory Strikes of Jurors
  • 3.9 Rule 3.9 Advocate in Nonadjudicative Proceedings
    • 3.9:100 Comparative Analysis of Ohio Rule
    • 3.9:200 Duties of Advocate in Nonadjudicative Proceedings

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

  • 4.1 Rule 4.1 Truthfulness in Statements to Others
  • 4.2 Rule 4.2 Communication with Person Represented by Counsel
    • 4.2:100 Comparative Analysis of Ohio Rule
    • 4.2:200 Communication with a Represented Person
  • 4.3 Rule 4.3 Dealing with Unrepresented Person
    • 4.3:100 Comparative Analysis of Ohio Rule
    • 4.3:200 Dealing with Unrepresented Person
  • 4.4 Rule 4.4 Respect for Rights of Third Persons
    • 4.4:100 Comparative Analysis of Ohio Rule
    • 4.4:200 Disregard of Rights or Interests of Third Persons

V. LAW FIRMS AND ASSOCIATIONS

  • 5.1 Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
    • 5.1:100 Comparative Analysis of Ohio Rule
    • 5.1:200 Duty of Partners to Monitor Compliance with Professional Rules
    • 5.1:300 Monitoring Duty of Supervising Lawyer
    • 5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer
    • 5.1:500 Vicarious Liability of Partners
  • 5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer
    • 5.2:100 Comparative Analysis of Ohio Rule
    • 5.2:200 Independent Responsibility of a Subordinate Lawyer
    • 5.2:300 Reliance on a Supervisory's Resolution of Ethical Issues
  • 5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
    • 5.3:100 Comparative Analysis of Ohio Rule
    • 5.3:200 Duty to Establish Safeguards
    • 5.3:300 Duty to Control Nonlawyer Assistants
    • 5.3:400 Responsibility for Misconduct of Nonlawyer Assistants
  • 5.4 Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]
    • 5.4:100 Comparative Analysis of Ohio Rule
    • 5.4:200 Sharing Fees with a Nonlawyer
    • 5.4:300 Forming a Partnership with Nonlawyers
    • 5.4:400 Third Party Interference with a Lawyer's Professional Judgment
    • 5.4:500 Nonlawyer Ownership or Control of Profit-Making Legal-Services Organizations
  • 5.5 Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law
    • 5.5:100 Comparative Analysis of Ohio Rule
    • 5.5:200 Engaging in Unauthorized Practice
    • 5.5:300 Unauthorized Practice in Ohio by Out-of-State Lawyers
    • 5.5:400 Provision of Legal Services on Temporary Basis
    • 5.5:500 Provision of Legal Services by Out-of-State Lawyers on Regular Basis
  • 5.6 Rule 5.6 Restrictions on Right to Practice
    • 5.6:100 Comparative Analysis of Ohio Rule
    • 5.6:200 Restrictions on Lawyers Leaving a Firm
    • 5.6:300 Settlements Restricting a Lawyer's Future Practice
  • 5.7 Rule 5.7 Responsibilities Regarding Law-Related Services
    • 5.7:100 Comparative Analysis of Ohio Rule
    • 5.7:200 Applicability of Ethics Rules to Ancillary Business Activities

VI. PUBLIC SERVICE

  • 6.1 Rule 6.1 Pro Bono Public Service
    • 6.1:100 Comparative Analysis of Ohio Rule
    • 6.1:200 Lawyer's Moral Obligation to Engage in Public Interest Legal Service
  • 6.2 Rule 6.2 Accepting Appointments
    • 6.2:100 Comparative Analysis of Ohio Rule
    • 6.2:200 Duty to Accept Court Appointments Except for Good Cause
  • 6.3 Rule 6.3 Membership in Legal Services Organization
    • 6.3:100 Comparative Analysis of Ohio Rule
    • 6.3:200 Conflicts of Interest of Lawyers Participating in a Legal Services Organization
  • 6.4 Rule 6.4 Law Reform Activities Affecting Client Interests
    • 6.4:100 Comparative Analysis of Ohio Rule
    • 6.4:200 Conflicts of Interest of Lawyers Participating in Law Reform Organizations
  • 6.5 Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs
    • 6.5:100 Comparative Analysis of Ohio Rule
    • 6.5:200 Exception to Conflict Rules for Limited Pro-Bono Legal Services

VII. INFORMATION ABOUT LEGAL SERVICES

  • 7.1 Rule 7.1 Communications Concerning a Lawyer's Services
    • 7.1:100 Comparative Analysis of Ohio Rule
    • 7.1:200 Lawyer Advertising--In General
  • 7.2 Rule 7.2 Advertising and Recommendation of Professional Employment
    • 7.2:100 Comparative Analysis of Ohio Rule
    • 7.2:200 Permissible Forms of Lawyer Advertising
    • 7.2:300 Retaining Copy of Advertising Material
    • 7.2:400 Paying to Have Services Recommended
    • 7.2:500 Identification of a Responsible Lawyer
    • 7.2:600 Advertising for Matters to be Referred
  • 7.3 Rule 7.3 Direct Contact with Prospective Client
    • 7.3:100 Comparative Analysis of Ohio Rule
    • 7.3:200 Prohibition of For-Profit In-Person, Live Telephone, and Real-Time Electronic Solicitation
    • 7.3:300 Prohibitions Applicable to All Forms of Solicitation
    • 7.3:400 Additional Requirements for Targeted Written, Recorded, and Electronic Solicitation
    • 7.3:500 Solicitation by Prepaid and Group Legal Services Plans
  • 7.4 Rule 7.4 Communication of Fields of Practice and Specialization
    • 7.4:100 Comparative Analysis of Ohio Rule
    • 7.4:200 Regulation of Claims of Certification and Specialization
  • 7.5 Rule 7.5 Firm Names and Letterheads
    • 7.5:100 Comparative Analysis of Ohio Rule
    • 7.5:200 Firm Names and Trade Names
    • 7.5:300 Law Firms with Offices in More Than One Jurisdiction
    • 7.5:400 Use of the Name of a Public Official
    • 7.5:500 Misleading Designation as Partnership, etc.
  • 7.6 Rule 7.6 Political Contributions to Obtain Government Engagements or Appointments by Judges
    • 7.6:100 Comparative Analysis of Ohio Rule
    • 7.6:200 The "Pay-to-Play" Prohibition

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

  • 8.1 Rule 8.1 Bar Admission and Disciplinary Matters
    • 8.1:100 Comparative Analysis of Ohio Rule
    • 8.1:200 Bar Admission
    • 8.1:300 False Statement of Material Fact in Connection with Admission or Discipline
    • 8.1:400 Duty to Respond to Demand for Information
  • 8.2 Rule 8.2 Judicial and Legal Officials
    • 8.2:100 Comparative Analysis of Ohio Rule
    • 8.2:200 False Statements About Judges or Candidates for Judicial Office
    • 8.2:300 Lawyer Candidates for Judicial Office
  • 8.3 Rule 8.3 Reporting Professional Misconduct
    • 8.3:100 Comparative Analysis of Ohio Rule
    • 8.3:200 Mandatory Duty to Report Serious Misconduct
    • 8.3:300 Reporting the Serious Misconduct of a Judge
    • 8.3:400 Exception Protecting Confidential Information
  • 8.4 Rule 8.4 Misconduct
    • 8.4:100 Comparative Analysis of Ohio Rule
    • 8.4:200 Violation of a Rule of Professional Conduct
    • 8.4:300 Commission of an Illegal Act Reflecting Adversely on Honesty or Trustworthiness
    • 8.4:400 Dishonesty, Fraud, Deceit and Misrepresentation
    • 8.4:500 Conduct Prejudicial to the Administration of Justice
    • 8.4:600 Implying Ability to Influence Public Officials
    • 8.4:700 Assisting Judge or Official in Violation of Duty
    • 8.4:800 Discrimination in the Practice of Law
    • 8.4:900 Threatening Prosecution [see section 1.2:900]
    • 8.4:1000 Conduct That Adversely Reflects on Fitness to Practice Law
  • 8.5 Rule 8.5 Disciplinary Authority; Choice of Law