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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II. Counselor

2.2   Rule 2.2 Intermediary

As a part of the 2002 amendment process, MR 2.2 was deleted. ABA, Annotated Model Rules of Professional Conduct 295 (5th ed. 2003). In its stead "the substance of both the Rule and its associated Comments were moved to a series of new and revised Comments to Model Rule 1.7 [MR 1.7], the rule governing concurrent conflicts of interest." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 24.2, at 24-4 (3d ed. Supp. 2004). The referenced comments are MR 1.7 cmts. [28]-[33] (2002).

The subject of the lawyer acting as intermediary in Ohio is touched upon by Greenbaum, who states:

It is not unusual for a lawyer to represent multiple clients in a mutual business transaction. Often, when a lawyer identifies a need of one client, the lawyer knows of another client who could address that need and the lawyer brings them together for their mutual benefit. Before undertaking the representation the lawyer should explain fully to each client the implications of common representation and obtain their consent. [citing to what is now OH EC 5-17]. At times, however, the interests of the clients will diverge as each seeks to maximize its interests at the expense of the other.

Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 5.89, at 409 (1996) (footnote material incorporated in text).

2.2:100   Comparative Analysis of Ohio Rule

As a part of the 2002 amendment process, MR 2.2 was deleted. ABA, Annotated Model Rules of Professional Conduct 295 (5th ed. 2003). In its stead "the substance of both the Rule and its associated Comments were moved to a series of new and revised Comments to Model Rule 1.7 , the rule governing concurrent conflicts of interest." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 24.2, at 24-4 (3d ed. Supp. 2004). The referenced comments are MR 1.7 cmts. [28]-[33] (2002).

The subject of the lawyer acting as intermediary in Ohio is touched upon by Greenbaum, who states:

   It is not unusual for a lawyer to represent multiple clients in a mutual business transaction. Often, when a lawyer identifies a need of one client, the lawyer knows of another client who could address that need and the lawyer brings them together for their mutual benefit. Before undertaking the representation the lawyer should explain fully to each client the implications of common representation and obtain their consent. [citing to what is now OH EC 5-17]. At times, however, the interests of the clients will diverge as each seeks to maximize its interests at the expense of the other.

Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 5.89, at 409 (1996) (footnote material incorporated in text).

2.2:101      Model Rule Comparison

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to former MR 2.2(a)(1): EC 4-2, EC 5-14, EC 5-15, EC 5-16, EC 5-20, DR 5-105(A) & (C). With the exception of DR 5-105(A), the OHCPR provision is identical to that in the Model Code. The differences are discussed in section 2.2:102.

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to former MR 2.2(a)(2) & (3): EC 5-14, EC 5-15, DR 5-105(A) & (C). With the exception of DR 5-105(A), the OHCPR provision is identical to that in the Model Code. The differences are discussed in section 2.2:102.

The correlation table to the ABA Model Rules identifies the following section of the ABA Model Code as related to former MR 2.2(b): EC 5-16. The OHCPR provision is identical to that in the Model Code, except that EC 5-16 is numbered EC 5-17 in Ohio.

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to former MR 2.2(c): EC 5-15, EC 5-19, DR 5-105(B) & (C). With the exception of DR 5-105(B), the OHCPR provision is identical to that in the Model Code. The differences are discussed in section 2.2:102.

The ABA Model Rules provide the following comparison:

There [is] no direct counterpart to this Rule in the Disciplinary Rules of the [OHCPR]. EC 5-20 state[s] that a "lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationships." DR 5-105(B) provide[s] that a lawyer "shall not continue multiple employment if the exercise of his independent judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client [...,] except to the extent permitted under DR 5-105(C)." DR 5-105(C) provide[s] that "a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representat! ion after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."

2.2:102      Model Code Comparison

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to former MR 2.2(a)(1): EC 4-2, EC 5-14, EC 5-15, EC 5-16, EC 5-20, DR 5-105(A) & (C).

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to former MR 2.2(a)(2) & (3): EC 5-14, EC 5-15, DR 5-105(A) & (C).

The correlation table to the ABA Model Rules identifies the following section of the ABA Model Code as related to former MR 2.2(b): EC 5-16.

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to former MR 2.2(c): EC 5-15, EC 5-19, DR 5-105(B) & (C).

With the exception of DR 5-105(A) & (B) and the renumbering of EC 5-16, EC 5-19, and EC 5-20 as EC 5-17, EC 5-20, and EC 5-21 in Ohio, the OHCPR provision is identical to that in the Model Code.

In DR 5-105(A), the ABA model includes the phrase "or if it would be likely to involve him in representing differing interests" between the phrase "proffered employment" and the final clause "except to the extent permitted under DR 5-105(C)." This phrase is not present in the Ohio Rule. With the inclusion of this additional phrase, the ABA provision arguably is broader than the Ohio provision, prohibiting representation where, even though the lawyer can exercise independent professional judgment on behalf of multiple clients, the clients' interests are likely to differ.

This same phrase is inserted in DR 5-105(B) in the ABA model after the phrase "another client" and before the final clause. Again this phrase is omitted in Ohio.

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