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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II. Counselor

2.1 RULE 2.1 ADVISOR

2.1:100 Comparative Analysis of Ohio Rule

2.1:101 Model Rule Comparison

Ohio Rule 2.1 is identical to the Model Rule.

2.1:102 Ohio Code Comparison

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 2.1: EC 7-8.

2.1:200 Exercise of Independent Judgment

As stated in the first sentence of Ohio Rule 2.1, a lawyer in representing a client "shall exercise independent professional judgment and render candid advice." Comment [1] emphasizes the candor requirement:

A client is entitled to straightforward advice expressing the lawyer's honest assessment.

Ohio Rule 2.1 cmt. [1]. The comment goes on to concede that this may involve unpleasant facts and that the lawyer should put the best possible face on it consistent with honesty. "However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." Id.

The duty to provide candid advice also implicates the duty of competence, Ohio Rule 1.1, and the duty of communication in Ohio Rule 1.4. See sections 1.1:200 and 1.4:200-:300.

Three Ohio ethical considerations (former OH EC 7-3, 7-5, and 7-8) dealt with the lawyer's role as advisor and the obligation as such to provide professional and objective counsel to his or her client. OH EC 7-3 contrasted the roles of advocate and advisor, and, as to the latter, noted that "a lawyer serving as advisor primarily assists his client in determining the course of future conduct and relationships." In doing so, the advisor "in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law." Id. Former OH EC 7-5 reiterated the importance of providing this professional opinion as well as "informing his client of the practical effect of such decision." Id. Accord former OH EC 7-8.

During the regime of the OHCPR, the Supreme Court stressed the importance of the exercise of independent judgment and decision making in Office of Disciplinary Counsel v. Hardesty, 80 Ohio St.3d 444, 687 N.E.2d 417 (1997). In that case, respondent was found to have violated a number of disciplinary rules (including former OH DR 1-102(A)(5) & (6)) as a result of his "ready deference to his client's bidding." Id. at 446, 687 N.E.2d at 419. The Court emphasized that respondent "yielded to these clients' wishes [to take or not take certain action] when he should have counseled them with respect to their duties under the law." Id. at 446-47, 687 N.E.2d 419. This prompted the Court to give a "hired-gun" lecture in the following terms:

All too often we have observed members of the profession, not only solo practitioners, but also salaried corporate counsel, members of small and large firms, and government attorneys, operating as "hired guns," acting solely at the direction of their employers or clients and neglecting their duty to counsel their clients. Neither the position of an attorney as an employee, nor the pressure to retain a client in a competitive legal environment, can justify an attorney's abdication of the duty of counseling.

Id. at 447, 687 N.E.2d at 419. The Court then quoted extensively from former OH EC 7-8 and concluded that "respondent acted as a 'hired gun'; he failed in his duty to counsel." Id. See Akron Bar Ass'n v. Miller, 80 Ohio St.3d 6, 684 N.E.2d 288 (1997) ("'the lawyer's job is not merely to supply whatever means are needed to achieve the client's goals but also to deliberate with the client and on his behalf about those goals.'" (citing Anthony T. Kronman, The Lost Lawyer 128-29 (1993)). Cf. Hahn v. Jennings, 2004 Ohio 4789, 2004 Ohio App. LEXIS 4320 (Franklin) (noting that defendant in malpractice case was "not simply a 'hired gun' required to advance whatever argument [his clients] brought to his attention," id. at ¶ 28, citing Hardesty). For a commentator's discussion of the "hired gun" lawyer model, see Charles W. Wolfram, Modern Legal Ethics § 4.3, at 154 (1986).

The focus of the Hardesty case on the lawyer's need to provide objective counsel, in contrast to deferring to the client's bidding, is an important part of the lawyer's obligation to exercise independent judgment. Other, equally important, aspects of a lawyer's independence are treated elsewhere. See, e.g., those sections of the treatise discussing Rules 1.7, 1.8, 1.9, and 5.4 (conflicts of interest, arising from a variety of circumstances, such as obligations to others (see section 1.7:400), the lawyer's own interests (see section 1.7:500), and sexual involvement with clients (see section 1.8:210). These aspects of independence are also discussed in ABA, Annotated Model Rules of Professional Conduct 290-93 (5th ed. 2003) (commentary).

See also Cincinnati Bar Ass'n Op. 92-93-08 (Mar. 16, 1993) (where a settlement offer is conditioned on waiver of attorney's fees, "a lawyer should evaluate a settlement offer on the basis of the client's interest. not the lawyer's interest in obtaining a statutory attorney's fee award, id. at 3).

2.1:300 Non-Legal Factors in Giving Advice

As stated in Ohio Rule 2.1, "[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." Despite the permissive language of the Rule, such broader counseling may in fact be necessary to provide competent advice. As Comment [2] acknowledges, "[a]dvice couched in narrow legal terms may be of little value to a client," especially because "moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied." Ohio Rule 2.1 cmt. [2]. Accord 2 Restatement (Third) of the Law Governing Lawyers § 94(3) (2000) ("In counseling a client, a lawyer may address nonlegal aspects of a proposed course of conduct, including moral, reputational, economic, social, political, and business aspects.").

In the main, it is ultimately for the client to make the decision with respect to objectives of the representation, as opposed to the strategic or tactical means of achieving those objectives. See Charles W. Wolfram, Modern Legal Ethics § 4.3, at 157 (1986). The treatise discusses the allocation of decision-making authority between client and lawyer in sections 1.2:310-:330. In addition, questions of what advice to seek, whether purely legal or encompassing other considerations as well, are for the client to decide. Nevertheless, the comments to the Rule stress the role of the lawyer in assuring that the client makes an informed decision as to the advice requested. Ohio Rule 2.1 cmt. [3]. The lawyer may also need to take the lead in providing advice not otherwise directly requested where necessary to protect the client's interests. Ohio Rule 2.1 cmt. [5].

The Ohio Rule is generally consistent with former OH EC 7-8, which spoke to the issue of non-legal factors in giving advice in the following terms:

Advice of a lawyer to his client need not be confined to purely legal considerations. . . . A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint. In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible.