skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII INFORMATION ABOUT LEGAL SERVICES

7.1 RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

7.1:100 Comparative Analysis of Ohio Rule

7.1:101 Model Rule Comparison

Ohio Rule 7.1 is quite similar, but not identical, to the Model Rule. The differences are as follows: Ohio inserts "or use" after "make" in the first sentence and, instead of "false or misleading", inserts "false, misleading, or nonverifiable" before "communication", also in the first sentence.

7.1:102 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 being related to Ohio Rule 7.1: DR 2-101.

7.1:200 Lawyer Advertising--In General

  • Primary Ohio References: Ohio Rule 7.1
  • Background References: ABA Model Rule 7.1
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.13, 2.16-2.17, 2.19-2.24, 2.53
  • Commentary: ABA/BNA § 81.1; Wolfram § 14.2

In earlier times and smaller communities, potential clients often knew the local lawyers by reputation and would select a lawyer accordingly. Former OH EC 2-6 concluded that this process "worked well because it was initiated by the client and the choice was an informed one." As communities have grown larger and the number of attorneys has multiplied, this is often no longer the case. When coupled with the greater specialization within the bar and the transient nature of the population, it is increasingly difficult for laypersons to make an intelligent choice of counsel for particular problems from community reputation alone. More and more, prospective clients select attorneys through advertising.

The Ohio Rules allow, but place limits upon, lawyer advertising and solicitation. One is a limitation on making false or misleading statements to secure clients. This includes not only direct false or misleading communication (Ohio Rule 7.1) but also limitation on claims of specialization (Ohio Rule 7.4) or the use of firm names or letterheads (Ohio Rule 7.5) that might be misleading. A second is a limitation on the lawyer's direct solicitation of clients where fear of lawyer overreaching requires special controls. (Ohio Rules 7.2 & 7.3).

Subject to the restrictions set forth in Rules 7.1 (false, misleading, or unverifiable communications), 7.3 (direct-solicitation limitations), and 4.3 (prohibition on advice to unrepresented of person other than advice to secure counsel), a lawyer can offer his services to potential clients who have not sought the lawyer's advice, for example by letter, consistent with Rule 7.2. See, under the former OHCPR, Bd. of Comm'rs on Grievances & Discipline Op. 92-2, 1992 Ohio Griev. Discip. LEXIS 19 (Feb. 14, 1992) (class counsel may recommend himself for employment by mail to nonclient class members or prospective class members without violating former OH DR 2-103(A)); Bd. of Comm'rs on Grievances & Discipline Op. 91-26, 1991 Ohio Griev. Discip. LEXIS 3 (Dec. 6, 1991) (attorney may contact business by mail to offer services through general representation or as in-house counsel). To the extent the prospective client approaches the lawyer about possible employment, the lawyer is of course free to promote his own services. See Rule 7.3 cmt. [7]. With respect to solicitation of firm clients by a lawyer departing the firm, see section 7.3:220.

7.1:210 The Commercial-Speech Doctrine

The material in this section is excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.13 (1996).

For many years, the states nationwide prohibited all but the most limited forms of lawyer advertising. Beginning with Bates v. Ariz. State Bar, 433 U.S. 350 (1977), however, the United States Supreme Court continually cut back on the authority of the states to regulate lawyers' advertising and found that many of the regulations at issue violated the First Amendment protection accorded commercial speech. The former disciplinary rules pertaining to lawyer advertising and solicitation (OH DR 2-101 to 2-105) to a large degree were shaped by, and were amended in response to, those Supreme Court decisions.

Although articulated in slightly different terms in different decisions, the basic constitutional standards that limit the states' regulation of lawyer advertising are generally settled. A state is free to ban commercial speech that is false, deceptive, or misleading. Commercial speech that is not false, deceptive, or misleading "can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest." Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 142 (1994). See also In re R.M.J., 455 U.S. 191, 203 (1982) ("[T]he State must assert a substantial interest and the interference with speech must be in proportion to the interest served."); accord Peel v. Attorney Registration & Discipline Comm'n, 496 U.S. 91 (1990). Communication of information that is only potentially misleading cannot be absolutely prohibited by a state if the information also can be presented in a way that is not deceptive. In re R. M. J., 455 U.S. 191; accord Peel, 496 U.S. 91 (quoting R.M.J. with approval).

Mere assertions by a state that various forms of advertising may harm professionalism or the quality of legal services, or may mislead the public, have not been sufficient to meet this burden. Bates, 433 U.S. 350; cf. Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) (discussing proof required). Regulation and the resulting discipline are permissible only if the particular advertising, given its content or form, either is inherently likely to deceive or can be shown on the record to be actually deceptive. R.M.J., 455 U.S. 191.

The Supreme Court, nevertheless, has recognized the need for regulation in this area, where consistent with the First Amendment. As the Court stated in R.M.J.:

Indeed, the Court recognize[s] the special possibilities for deception presented by advertising for professional services. The public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the "product" renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling.

Id. at 202.

7.1:220 False and Misleading Communications

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 §§ 2.16-2.17, 2.19-2.20, 2.22-2.24, 2.53 (1996).

In lieu of the elaborate restrictions on lawyer publicity detailed in former OH DR 2-101, Ohio Rule 7.1 states merely that:

A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.

As stated in Comment [2], a statement can be misleading, even if true, if it omits a material fact: "A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation. Rule 7.1 cmt. [2].

Comment [3] continues the discussion of what may be misleading, even if truthful. Examples are advertisements reporting achievements on behalf of clients "if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case." Unsubstantiated comparisons of services or fees with those of another lawyer can also be misleading "if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated." Disclaimers or qualifying language "may" preclude a finding of unjustified expectations or that the statement is otherwise misleading. Rule 7.1 cmt. [3].

Finally, Comment [4] states that characterization of rates or fees chargeable by the lawyer or firm by use of terms "such as 'cut-rate,' 'lowest,' 'giveaway,' 'below cost,' 'discount,' or 'special' is misleading." (To the same effect under the Code, see Bd. of Comm'rs on Grievances & Discipline Op. 2005-9, 2005 Ohio Griev. Discip. LEXIS 11 (Dec. 2, 2005) (advertising with coupons for free consultation or dollars off the cost of legal services is a characterization of fees as "discount" or "special" in violation of former OH DR 2-101(A)(5)).)

While the Rule is principally directed to advertising, it applies to any "communication" about "the lawyer or the lawyer's services." See Ohio Rule 7.1 cmt. [1]. Making a misleading comment about yourself or your practice to another violates this provision. False or misleading statements made by a lawyer on other topics are addressed in Ohio Rule 3.3 (candor to the tribunal), 4.1 (truthfulness in statements to others) and 8.4(c) (general prohibition against conduct involving dishonesty, fraud, deceit, or misrepresentation).

The Ohio Code Comparison to Rule 7.1 is both helpful and confusing. Helpful in that it makes clear that (subject always to the false and misleading ban) the prohibitions in former OH DR 2-101 against client testimonials and self-laudatory claims are no longer present; nor are the directives of 2-101(B) (micromanaging what a lawyer may do in the way of advertising), 2-101(D) (the fourteen items of non-fee information that constituted safe harbors), 2-101(E) (safe-harbor information regarding fees), and 2-101(G) (prohibition against buying publicity from the media in a news item). The confusion comes from the statement that the Rule does not contain "the definition of misleading found in DR 2-101(C) (see comment [2] of Rule 7.1)." But Rule 7.1 does not omit the definition from 2-101(C)(1); it incorporates it verbatim in the second sentence of the Rule. While the remaining two subsections of 2-101(C) are not incorporated verbatim in the Rule or its comments, unjustified expectations are treated in Comment [3], as are lawyer comparisons, and stating or implying an ability to achieve results by means that violate the Rules or other law is now contained in Rule 8.4(e). See Rule 7.1 cmt. [5].

Given the decidedly narrower approach as to what is now prohibited, a sizeable portion of the case law dealing with the minutiae of the OHCPR (self-laudatory, client testimonials, etc.) is no longer relevant. The primary focus, however, then and now, is on false or misleading communications, and prior precedent on that subject will now be considered. (There is no constitutional impediment to state regulation of such statements; see Bates v. Ariz. State Bar, 433 U.S. 350, 375 (1977), recognizing a state's right "to correct omissions that have the effect of presenting an inaccurate picture.")

Misleading statements concerning professional status: Some opinions in this area under the Code dealt with communications that might confuse the public as to the lawyer's professional status. For example, it was misleading for a person, licensed to practice law only in another state but employed in Ohio as a company's collections manager, to use "Esq." after his name when signing business correspondence. Bd. of Comm'rs on Grievances & Discipline Op. 91-24, 1991 Ohio Griev. Discip. LEXIS 5 (Oct. 18, 1991). Use of the term would likely make the recipient believe the author was an attorney licensed to practice law in the state and as such was intended to create additional pressure on the debtor.

Other cases and opinions focused on communications that misled the public concerning the nature of the lawyer's affiliation with other attorneys. See also section 7.5:500. For example, use in a firm name of the phrase "and Associates" by one who is in solo practice is improper under this standard. The phrase implies that the lawyer is involved in an employment relationship with other attorneys and thus it cannot be used to describe office sharing or co-counsel arrangements with other attorneys or to denote that the lawyer has nonlawyer support personnel in his employ. Bd. of Comm'rs on Grievances & Discipline Op. 95-1, 1995 Ohio Griev. Discip. LEXIS 13 (Feb. 3, 1995). Accord Office of Disciplinary Counsel v. Watson, 98 Ohio St.3d 181, 2002 Ohio 7088, 781 N.E.2d 212 (solo lawyer's use of "Watson and Watson" misleading); Medina County Bar Ass'n v. Grieselhuber, 78 Ohio St.3d 373, 678 N.E.2d 535 (1997) (solo practitioner's use of his name "and affiliates" is misleading).

Special problems can arise where lawyers who share office space use a common phone line. If a receptionist mentions the names of the lawyers in answering the phone, it may mislead the public into believing that the lawyers are practicing in the same firm. To avoid this, the receptionist should answer the phone "law offices" or by the phone number. Bd. of Comm'rs on Grievances & Discipline Op. 95-1, 1995 Ohio Griev. Discip. LEXIS 13 (Feb. 3, 1995). Lawyers wishing to have their names mentioned when the phone is answered should establish separate telephone listings. Id.

Group advertising raised similar concerns if it falsely implied that the lawyers behind the advertisement were affiliated in some fashion when they were not. Bd. of Comm'rs on Grievances & Discipline Op. 91-7, 1991 Ohio Griev. Discip. LEXIS 23 (Apr. 12, 1991).

Simultaneous practice with more than one legal professional association or law firm in Ohio was declared improper by the Board of Commissioners on Grievances and Discipline in part because it could be misleading or confusing to the public. Bd. of Comm'rs on Grievances & Discipline Op. 89-35, 1989 Ohio Griev. Discip. LEXIS 5 (Dec. 15, 1989); accord Bd. of Comm'rs on Grievances & Discipline Op. 99-7, 1999 Ohio Griev. Discip. LEXIS 8 (Dec. 2, 1999) (expressly reaffirming Opinion 89-35); Bd. of Comm'rs on Grievances & Discipline Op. 93-1, 1993 Ohio Griev. Discip. LEXIS 11 (Feb. 12, 1993) (discussing issue in context of proposed multi-firm operation of a 900 service for providing legal advice). But see Cleveland Bar Ass'n Op. 90-1 (Aug. 26, 1990) (expressly rejecting Board Opinion 89-35, arguing that concern of Disciplinary Rules is truthfulness of statements made, not fact of simultaneous practice; if lawyer is engaged in actual practice with each firm, generally and regularly available to render services to clients of each firm, then simultaneous practice is permitted, although confidentiality and conflicts problems must be avoided).

Misleading communications about competence or methods: Communications that have a tendency to create unjustified expectations about the results the lawyer can achieve are also misleading. See Rule 7.1 cmts. [3] & [5]. Equally misleading would be use of a domain name on a firm's website such as "willwineverycaseforyou." Bd. of Comm'rs on Grievances & Discipline Op. 99-4, 1999 Ohio Griev. Discip. LEXIS 4, at *6 (June 4, 1999).

Thus, commercials touting a firm's past successes, even though not inaccurate, were "inherently misleading." Office of Disciplinary Counsel v. Shane, 81 Ohio St.3d 494, 496, 692 N.E.2d 571, 573 (1998) (no way to measure objectively results achieved).

In a 1993 opinion, the Board of Commissioners addressed whether a former judge returning to private law practice may use statements as to prior judicial positions held, or titles such as "Judge," "Honorable," or "Former Judge," in various types of communication and advertising. Bd. of Comm'rs on Grievances & Discipline Op. 93-8, 1993 Ohio Griev. Discip. LEXIS 4 (Oct. 15, 1993) (Board did not address issue in context other than former judge assuming position in private practice). The Board indicated that the context in which the information was presented is important. The Board found the conduct misleading, and thus improper under former OH DR 2-101(A)(1), if the statements were included on letterhead or business cards used in connection with the practice of law. The Board felt the use of such terms was misleading "by creating the appearance that an attorney can use the prestige of past judicial experience to assure a client's success [and] falsely indicates that a former judge has influence over others to achieve desired ends or favorable treatment for the client." 1993 Ohio Griev. Discip. LEXIS 4, at *4. In contrast, the Board approved the inclusion, on a professional announcement card or in a professional law directory, of a factual statement of prior judicial positions held. The Board explained that given the different, largely legal audience intended for these devices, the inclusion of such information was likely to be informative, not misleading. Without deciding the issue directly, the Board suggested that even in this setting the use of titles, such as "Judge," "Honorable," or "Former Judge" might be improper, whereas a factual statement of former status clearly would not be. [Query how the title "Former Judge" is something other than a factual statement of former status.] See Ohio Code Comparison to Rule 7.5: "The Rules of Professional Conduct should not preclude truthful statements about a lawyer's professional status, other business pursuits, or degrees."

The Cleveland Bar Association, under the OHCPR, saw the issue differently. While recognizing the possibility that advertising concerning prior judicial positions could create unjustified expectations of competence or results, the bar association indicated such statements would be acceptable, whether in advertising or in professional announcements, but that care should be taken in how the material is presented. "The reference should always be factual and should be made in such a way that it is used to emphasize experience or competence of a general nature, or to refresh or enlighten the minds of the public as to past employment," not to mislead or suggest specialized knowledge. Cleveland Bar Ass'n Op. 89-6 (Mar. 30, 1990). This seems to be a fair import of what the Task Force intended in its Ohio Cole Comparison, quoted above.

The creation of unjustified expectations is discussed further in section 7.1:230. Unsubstantiated comparisons with other lawyers are treated in section 7.1:240. See also section 8.4:600 (discussing lawyer discipline for stating or implying an ability to improperly influence governmental officials).

Misleading communication - Nonverifiable claims: In addition to the Model Rule "false or misleading" language, Ohio Rule 7.1 has retained from the Code the prohibition against making a "nonverifiable communication about the lawyer or the lawyer's services." Under the OHCPR, for example, the Supreme Court held that a statement in an advertisement that "We Do It Well" violated this standard because it was not verifiable. Medina County Bar Ass'n v. Grieselhuber, 78 Ohio St.3d 373, 678 N.E.2d 535 (1997). Likewise violative of, inter alia, former OH DR 2-101(A)(4)) was an advertisement placed by the respondent in a local publication stating as follows:

"Tom Furth * * * Nationally noted. Amazingly affordable. Incredibly dedicated. He's our neighbor and he's known from coast to coast. Top notch legal services with a GUARANTEE of satisfaction and 24 hour a day access."

Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 177, 754 N.E.2d 219, 225 (2001) (emphasis in original). The Court, rejecting the dismissal of this count by the panel and Board, concluded that these statements by respondent "are clearly unverifiable and self-laudatory."  Id. at 186, 754 N.E.2d at 232. See Office of Disciplinary Counsel v. Shane, 81 Ohio St.3d 494, 692 N.E.2d 571 (1998) (no way to objectively determine what results were achieved by firm). In Columbus Bar Ass’n v. Willette, 117 Ohio St.3d 433, 2008 Ohio 1198, 884 N.E.2d 581, respondent had a contract with an out-of-state marketing firm and conceded that the firm’s direct mail marketing on his behalf was “misleading, false, or unverifiable.” Rejecting respondent’s argument that these activities were unknown to him, the Court found that he did have such knowledge. In addition, it emphasized that a lawyer in respondent’s position, who made no effort to supervise or review the mailings, “cannot evade responsibility for these mailings by maintaining a willful ignorance of their content.” Id. at para. 24. Bd. of Comm'rs on Grievances & Discipline Op. 2005-6, 2005 Ohio Griev. Discip. LEXIS 6 (Aug. 8, 2005), probably falls in the unverifiable category as well; therein the Board opined that a lawyer should not participate in a local television program entitled and advertised as "Ask the Expert," because "[l]awyers may not hold themselves out as experts." Id. at *1. The Board focused on former OH DR 2-105(A)(6), where special competence could not be claimed unless the lawyer had been certified in a particular field or was engaged in federal patent, trademark, or admiralty practice. Under the Code rule, there was "no leeway for attorneys to use the term 'expert' in advertising." Id. at *3. Although the ban on using "specialize" and variations thereof no longer exists, see Rule 7.4, we believe that use of "expert" and its variations is one step beyond "specialization" and would run afoul of both Rule 7.1 and 7.4. See further section 7.4:200 at "Claims of specialization."

Verifiable truthful communication, in contrast, is generally permissible, even if there is some chance the comments may mislead the public, unless that chance is too great. See Rule 7.1 cmt. [2]. For example, a statement that a lawyer has been certified by a particular bona-fide group is a verifiable fact, rather than an unverifiable opinion of quality or ultimate success. Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136 (1994) (use of the term "certified" in describing that a lawyer is a Certified Financial Planner is not inherently misleading; mere use of the term does not suggest that the lawyer has been certified by the government); Peel v. Attorney Registration & Discipline Comm'n, 496 U.S. 91 (1990) (statement that lawyer was certified as "Civil Trial Specialist" by National Board of Trial Attorneys approved). Truthful statements about the nature of a practice, such as that the lawyer is presently representing clients in a particular area of litigation, is a verifiable fact. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (statement that lawyer currently was representing plaintiffs in Dalkon Shield litigation). Such statements are not prohibited simply because some members of the public might infer from the statements that the lawyer is more qualified than others without those experiences, which would be a nonverifiable fact.

In 1992, the Board addressed whether a lawyer's advertisement in a farming trade journal stating "Being a farmer of over 20 years experience, I understand farmers and I understand their problems," was misleading. Bd. of Comm'rs on Grievances & Discipline Op. 92-12, 1992 Ohio Griev. Discip. LEXIS 9, at *1 (June 19, 1992). The Board found that it was not. The first clause was a verifiable fact and the second, while potentially self-laudatory (no longer prohibited), seemed reasonable and not misleading given the lawyer's twenty years of experience.

Misleading communication - Fee advertising - Language restrictions: Lawyers are not prohibited from including fee information in their advertising. Comment [4], however, brands some phrases used in fee advertising as misleading. Thus, the comment prohibits a lawyer's involvement in public communications that contain "characterization" of a lawyer's rates or fees "such as 'cut-rate,' 'lowest,' 'giveaway,' 'below cost,' 'discount,' 'special.'" Use of similar terms were also impermissible under the former Code rule, Bd. of Comm'rs on Grievances & Discipline Op. 98-1, 1998 Ohio Griev. Discip. LEXIS 9 (Feb. 13, 1998) (finding phrases such as "low cost," "discounted," and "below regional cost" impermissible), and probably suffer a similar fate under Comment [4], since it is essentially identical to OH DR 2-101(A)(5). See, under the Code, Columbus Bar Ass'n v. Dugan, 113 Ohio St.3d 370, 2007 Ohio 2077, 865 N.E.2d 895 (offering a coupon on website for 10% discount off first consultation fee violated 2-101(A)(5)).

OH DR 2-101(A)(5) specifically authorized the use of two such characterizations; rates or fees could be described as "reasonable" or "moderate." See generally Bates v. Ariz. State Bar, 433 U.S. 350 (1977) (upholding right of lawyer to advertise fees as "very reasonable" when, in fact, they were so). "Reasonable" or "moderate" will surely pass muster under Rule 7.1, and similar phrases also are likely to be acceptable.

Other than the provisions of Comment [4], there are no explicit restrictions on fee information such as were included in former OH DR 2-101(E). Of course, the overarching false or misleading prohibition applies to fee information; see Rule 7.1 cmt. [3], noting that unsubstantiated comparisons of a lawyer's fees with those of other lawyers may be misleading. See ABA, Annotated Model Rules of Professional Conduct 517 (6th ed. 2007) (discussing omissions regarding lawyer's fees and citing favorably Ohio State Bar Ass'n Informal Op. 01-03, at 1 (June 1, 2001) to effect that lawyer cannot advertise "[n]o attorney fee in personal injury cases, unless we get money for you" without statement clarifying whether client responsible for costs and expenses if no recovery). See section 1.8:610, for a discussion of client cost/fee obligations in a contingent-fee context.

Statements soliciting clients for subsequent referral: Former OH DR 2-101(A)(2) restricted a lawyer's involvement in making public communications "[s]eeking employment in connection with matters in which the lawyer or law firm does not intend to actively participate in the representation, but intends to refer to other counsel." This concern is now addressed in Ohio Rule 7.2(d). See section 7.2:600.

Communications by lawyers practicing multiple professions: Former OH DR 2-102(E) provided that

[a] lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on the lawyer's letterhead, office sign, or professional card, nor shall the lawyer identify himself or herself as a lawyer in any publication in connection with his or her other profession or business.

This provision also has been dropped from the Rules; in the words of the Task Force, "[t]he Rules of Professional Conduct should not preclude truthful statements about a lawyer's professional status, other business pursuits, or degrees." Ohio Code Comparison to Rule 7.5. Among other reasons why this is so is that such prohibitions are unconstitutional. See Ibanez, v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136 (1994) (overturning reprimand of lawyer/CPA for referring to her certified financial planner status on her stationary and business cards).

7.1:230 Creating Unjustifiable Expectations

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 § 2.16 (1996).

In numerous ways lawyers may create unjustifiable expectations about the results they can achieve. Such conduct may be prohibited as misleading under Comment [3]. For example, under the OHCPR, an offer of a money-back guarantee in intellectual property matters violated the Rule by creating unjustified expectations regarding the results that the firm could achieve and implied that the firm had improper influence or control over the legal system. Bd. of Comm'rs on Grievances & Discipline Op. 2003-2, 2003 Ohio Griev. Discip. LEXIS (Apr. 11, 2003). And incomplete statements about the law in an advertisement could be both misleading in general and also create an unjustified expectation concerning results. Toledo Bar Ass'n Op. 90-18 (Aug. 30, 1990) (misstatements in yellow pages ad concerning bankruptcy).

Statements about a lawyer's past successes, even if true, may be misleading if presented in a way that leads a reasonable person to have unjustified expectations of future performance. Rule 7.1 cmt. [3]. The rationale for restricting such comments was well-stated by the Ohio Supreme Court under the OHCPR in Office of Disciplinary Counsel v. Shane, 81 Ohio St.3d 494, 692 N.E.2d 571 (1998):

[T]here is no way to objectively determine whether the results achieved by the firm were exceptional, adequate, or poor, or even whether the firm was instrumental in the outcome of the cases. Comments about past successes may create unjustified expectations of similar outcomes in the future without taking into account the peculiarities of the particular cases.

Id. at 496, 692 N.E.2d 573. Accord Bd. of Comm'rs on Grievances & Discipline Op. 2003-2, 2003 Ohio Griev. Discip. LEXIS (Apr. 11, 2003) (proposed use of statistics regarding number of intellectual property cases won, lost, and settled by firm "creates unjustified expectations that the law firm is able to control the outcome of cases," id. at *5; money-back guarantees also create unjustified expections "that the lawyer has improper control or influence over the legal system." Id. at *11.); see Bd. of Comm'rs on Grievances & Discipline Op. 2002-7, 2002 Ohio Griev. Discip. LEXIS 7 (June 14, 2002) (improper under former OH DR 2-101(A)(1) & (4) to include in advertisements such statements as "Trip/Fall sidewalk-brain injury, $1,000,000 verdict" or "Dog bite $50,000 settlement," id. at *1; in addition to being misleading and self-laudatory, such statements create unjustified expectations).

While former OH DR 2-101(A)(3) prohibited a lawyer's involvement in public communications that contained testimonials of past or present clients pertaining to the lawyer's capability, that prohibition is no longer applicable. See the Task Force's Ohio Code Comparison to Rule 7.1. Indeed, on January 24, 2005, the Ohio Supreme Court issued an order precluding enforcement of OH DR 2-101(A)(3) by the Board or state and local bar associations until further order of Court. 104 Ohio St.3d 1457, 2005 Ohio 235, 821 N.E.2d 574 (2005). (The rule had been challenged on First Amendment grounds by the plaintiff in Adams v. Bus. First of Columbus, Inc., No. 2:04 CV 264 (S.D. Ohio); in exchange for the Court's order, Adams agreed to dismiss his case without prejudice.) The issue in the Adams case is now moot, given the freedom under the Rules to use client testimonials (subject of course to the ever-present false or misleading prohibition). See ABA, Annotated Model Rules of Professional Conduct 518-19 (6th ed. 2007) (commentary).

7.1:240 Comparison with Other Lawyers

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 § 2.16 (1996).

Rule 7.1 cmt. [3] discusses making comparisons of a lawyer's services or fees with those of other lawyers. Unless the comparisons can be factually substantiated, such comparisons may be misleading "if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated." Id. Does this mean that unsubstantiated comparisons made without specificity are permissible? Would a general claim that "I am the best at what I do" pass muster? It seems unlikely, if for no other reason than that such a claim is nonverifiable. See ABA, Annotated Model Rules of Professional Conduct 519 (6th ed. 2007) (commentary). Under the Code, it was opined that "[c]ommunication that states or implies that an out-of-state lawyer has special abilities to get results or special competence is false and misleading. Communication that unverifiably praises self and denigrates other lawyers is false and misleading." Bd. of Comm'rs on Grievances & Discipline Op. 92-2, 1992 Ohio Griev. Discip. LEXIS 19, at *8 (Feb. 14, 1992) (comments made in context of addressing permissibility of communications between class counsel and non-client members or potential members of the class).

Comments suggesting that a lawyer is highly ranked relative to other lawyers, such as the description that "as a certified specialist in family relations, he's the most qualified lawyer in Ohio," Columbus Bar Ass'n v. Dugan, 113 Ohio St.3d 370, 2007 Ohio 2077, 865 N.E.2d 895, at para. 10 (emphasis by the Court) (such comment violative of former OH DR 2-101(A)(1) as self-laudatory), and describing oneself as a "leader in the creation of quality living trust documents," Office of Disciplinary Counsel v. Bradley, 82 Ohio St.3d 261, 262, 695 N.E.2d 248, 248 (1998) (same), may well be suspect under this provision. Once again, although the prohibition on self-laudatory statements is no longer present, these cases would likely come out the same way because such claims are nonverifiable.

7.1:250 Permissible Communication

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 §§ 2.21, 2.23 (1996).

Permissible communication of non-fee information: Former OH DR 2-101(D) provided a list of information that lawyers could convey "acceptable for dissemination under these rules." Such information was "presumed to be informational," and therefore proper, rather than "solely promotional or self-laudatory," which was prohibited. Even if the information conveyed fell within the OH DR 2-101(D) list, it still was subject to two restrictions. The information had to be both accurate and conveyed in a dignified manner.

DR 2-101(D) has not been included in Rule 7.1. See Ohio Code Comparison to Rule 7.1.

The basis for the provision -- to distinguish permitted "informational" statements from prohibited "solely promotional or self-laudatory" ones -- no longer exists, because the ban on promotional or self laudatory statements itself no longer exists under the Rules. Id. Nevertheless, we repeat the list here, if for no other reason than to remind that this information would now a fortiori be permitted, given the greater freedom of lawyers under the Ohio Rules to disseminate information about their services, so long as it is not false, misleading, or nonverifiable. Rule 7.1.

The fourteen items in former OH DR 2-101(D) were:

(1) Name or names of lawyer, law firm, and professional associates, together with their addresses and telephone numbers, with designations such as "Lawyer," "Attorney," "Law Firm." (Now see Rule 7.2 cmt. [2].) Restrictions on law firm names are addressed in Rule 7.5. See sections 7.5:200-:500.

(2) Field or fields of practice, limitations of practice, or areas of concentration, but only to the extent permitted by former OH DR 2-105. (Now see Rule 7.2 cmt. [2]; see section 7.4:200.)

(3) Date and place of birth.

(4) Dates and places of admission to the bar of the state and federal courts. See In re R.M.J., 455 U.S. 191 (1982) (striking down state's prohibition on lawyers' identification of jurisdictions in which they are licensed to practice).

(5) Schools attended, with dates of graduation and degrees conferred.

(6) Legal teaching positions held at accredited law schools.

(7) Authored publications.

(8) Memberships in bar associations and other professional organizations.

(9) Technical and professional licenses.

(10) Military service.

(11) Foreign language abilities. (Now see Rule 7.2 cmt. [2].)

(12) Subject to former OH DR 2-103, prepaid or group legal service programs in which the lawyer or firm participates. (Now see Rules 7.2(b)(2) and 7.3(f); see sections 7.2:400, 7.3:210, and 7.3:500.)

(13) Whether credit cards or other credit arrangements are accepted. (Now see Rule 7.2 cmt. [2].)

(14) Office and telephone answering services hours.

Even under the Code, the items listed did not include all of the information lawyers might properly convey in public communications, see Bd. of Comm'rs on Grievances & Discipline Op. 2000-6, 2000 Ohio Griev. Discip. LEXIS 6 (Dec. 1, 2000) (OH DR 2-101(D) list is illustrative, not exhaustive); restrictions defining permissible subjects of communication and prohibiting all others have been struck down as an unconstitutional infringement of the First Amendment.  In re R.M.J., 455 U.S. 191 (1982) (striking down state's requirement that lawyers use specific words to describe particular areas of practice).

Although not mentioned in the list, it was not inappropriate for a lawyer to advertise the names of regular clients. E.g., Bd. of Comm'rs on Grievances & Discipline Op. 2000-6, 2000 Ohio Griev. Discip. LEXIS 6 (Dec. 1, 2000) (approving listing client names in public communications -- specifically, inclusion on law firm web site -- but cautioning that client consent should be obtained). Such a practice, with the client's consent, is expressly recognized Rule 7.2 cmt. [2].

Permissible communication of fee information: Former OH DR 2-101(E)(1) identified three types of information concerning fees and charges that a lawyer could advertise: (1) the fee for an initial consultation; (2) the availability, upon request, of a written fee schedule or fee estimate for specific services; and (3) the rates for services, whether computed on a contingency, fixed, or hourly basis.

In contrast, Ohio Rule 7.2 cmt. [2] states generally that a lawyer may provide "the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements."

Permissible communication and the dignity requirement: Both OH DR 2-101(D) and (E) emphasized that permitted communications had to be "presented in a dignified manner." While the organized bar nationwide has in the past shown special concern that lawyer advertising be dignified, it is not clear that such a restriction is constitutional. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 648 (1985), the Court stated: "we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgement of their First Amendment rights." There is no "dignity" requirement under the Rules. See Rule 7.2 cmt. [3], noting that questions of "taste" are speculative and subjective.