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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.

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Ohio Legal Ethics Narrative

VI. PUBLIC SERVICE

6.1 RULE 6.1 PRO BONO PUBLIC SERVICE

THE READER SHOULD NOTE THAT A TASK FORCE APPOINTED BY CHIEF JUSTICE MOYER IN 2003 HAS CONCLUDED THAT OHIO SHOULD ADOPT SOME FORM OF THAT ABA MODEL RULES OF PROFESSIONAL CONDUCT. IN APRIL 2005, HOWEVER, THE TASK FORCE ADVISED THAT IN LIGHT OF ONGOING REVIEWS OF THIS SUBJECT BY THE SUPREME COURT TASK FORCE ON PRO SE AND INDIGENT REPRESENTATION AND BY THE OHIO LEGAL ASSISTANCE ASSOCIATION, "AND IN DEFERENCE TO THE SUBJECT-MATTER EXPERTISE POSSESSED BY MEMBERS OF THESE TWO ENTITIES, THE TASK FORCE CONCLUDED THE SUPREME COURT WOULD BE BETTER SERVED BY CONSIDERING THE RECOMMENDATIONS REGARDING MODEL RULE 6.1 THAT THOSE TWO ENTITIES WILL PRESENT TO THE COURT."

6.1:100 Comparative Analysis of Ohio Rule

6.1:101 Model Rule Comparison

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to MR 6.1: EC 1-2, EC 1-4, EC 2-1, EC 2-2, EC 2-16, EC 2-24, EC 2-25, EC 6-2, EC 8-1, EC 8-2, EC 8-3, EC 8-7, EC 8-9. The OHCPR provision is identical to that in the Model Code for the most part. EC 2-16, 2-24 and 2-25 are numbered 2-15, 2-23 and 2-24 in Ohio. While OH EC 1-4 differs from its Model Code counterpart, those differences are not relevant here.

The ABA Model Rules provide the following comparison:

There [is] no counterpart of this Rule in the Disciplinary Rules of the [OHCPR]. EC 2-2[4] state[s] that the "basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer.... Every lawyer, regardless of professional prominence or professional work load, should find time to participate in serving the disadvantaged." EC 8-9 state[s] that "[t]he advancement of our legal system is of vital importance in maintaining the rule of law ... [and] lawyers should encourage, and should aid in making, needed changes and improvements." EC 8-3 state[s] that "[t]hose persons unable to pay for legal services should be provided needed services."

6.1:102 Model Code Comparison

The correlation table to the ABA Model Rules identifies the following sections of the ABA Model Code as related to MR 6.1: EC 1-2, EC 1-4, EC 2-1, EC 2-2, EC 2-16, EC 2-24, EC 2-25, EC 6-2, EC 8-1, EC 8-2, EC 8-3, EC 8-7, EC 8-9. The OHCPR provision is identical to that in the Model Code for the most part. EC 2-16, 2-24 and 2-25 are numbered 2-15, 2-23 and 2-24 in Ohio. While OH EC 1-4 differs from the Model Code, that difference is not relevant here.

6.1:200 Lawyer's Moral Obligation to Engage in Public Interest Legal Service

  • Primary Ohio References: None
  • Background References: ABA Model Rule 6.1
  • Commentary: ABA/BNA § 91:6001, ALI-LGL § , Wolfram § 16.9
  • OH Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.131, 2.176

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.131, 2.176 (1996).

The OHCPR does not require lawyers to provide free legal services, but it encourages them to do so in appropriate circumstances. See, e.g., OH EC 2-15, 2-23, 2-24. OH EC 2-24, the most detailed statement on the matter in the OHCPR, declares that providing legal services to those unable to pay for them is a "basic responsibility" of the individual lawyer and that every lawyer, regardless of status or workload, "should find time to participate in serving the disadvantaged." OH EC 8-3 adds that "[t]hose persons unable to pay for legal services should be provided needed services." See also Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 3.3(A) (1992). Beyond this individual commitment, lawyers are encouraged to support other efforts, such as legal aid, that help to make legal services avail! able to the disadvantaged. OH EC 2-24; see section 7.3: 500.

While a lawyer is not required to take on any particular client, the ethical considerations exhort lawyers to participate in assuring that representation is broadly available. To this end, they direct that a lawyer should take on his share of causes that may be "unattractive both to him and the bar generally." OH EC 2-25. In keeping with this goal, the OHCPR admonishes lawyers not to avoid taking an on unpopular clients or causes simply because of adverse community reaction, OH EC 2-26; nor should a lawyer reject employment simply because he or she does not want to cross influential members of the bench, bar, or community at large. OH EC 2-27. As a further encouragement to take on unpopular matters, statements abound to the effect that taking on such representation in no way constitutes an endorsement of the client or the cause, but only of the right to representation in ou! r legal system. See, e.g., MR 1.2 (b); cf. OH EC 7-17 (obligation of loyalty to client "implies no obligation to adopt a personal viewpoint favorable to the interests or desires of his client"). However, if the intensity of [the lawyer's] personal feeling, as distinguished from a community attitude," might impair the lawyer's ability to represent the prospective client competently, then the representation should be declined. OH EC 2-29.

Little Ohio material is available on the issue of how much time a lawyer should devote to pro bono legal services. MR 6.1 (2002) deals with the issue as follows:

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.

The first sentence, setting forth "a professional responsibility" to do pro bono work was added by the 2002 amendments. Subsections (a) and (b) of MR 6.1 provide guidance with respect to the 50 hours expected. The thrust of subsection (a) is that most of the suggested 50 hours should be provided to persons of limited means, either directly (MR 6.1(a)(1) or indirectly (MR 6.1(a)(2)). Comments elaborating on this obligation/ aspirational goal, include [11] and [12]:

Law firms should act reasonably to enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule.

MR 6.1 cmt [11] (2002), and

The responsibility set forth in this Rule is not intended to be enforced through disciplinary process.

MR 6.1 cmt. [12] (2002).

Finally, comment [9] recognizes that there may be times when engagement in pro bono services is not feasible for a lawyer. In such a case, the pro bono responsibility can be met by financial support of organizations providing free legal services to persons of limited means. "In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities." MR 6.1 cmt. [9].