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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII INFORMATION ABOUT LEGAL SERVICES

7.3 RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENT

7.3:100 Comparative Analysis of Ohio Rule

7.3:101 Model Rule Comparison

The differences between Ohio Rule 7.3 and MR 7.3 are as follows:

Divisions (a) and (b) are substantively identical to the Model Rule, with minor changes in wording.

In division (c), the clause "Unless the recipient of the communication is a person specified in division (a)(1) or (2) of this rule" is placed at the beginning of the first paragraph, rather than at the end, as in the Model Rule. Division (c) also substitutes "whom the lawyer reasonably believes" for "known" before "prospective client" in the opening paragraph. Finally, after the words "in a particular matter" in the opening paragraph, division (c) deletes the Model Rule language "shall include the words 'Advertising Material' on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication," and in lieu thereof states:

"shall comply with all of the following:

(1) Disclose accurately and fully the manner in which the lawyer or law firm became aware of the identity and specific legal need of the addressee;

(2) Disclaim or refrain from expressing any predetermined evaluation of the merits of the addressee's case;

(3) Conspicuously include in its text and on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication the recital - 'ADVERTISING MATERIAL' or 'ADVERTISEMENT ONLY.'"

Division (d) has no counterpart in MR 7.3 and sets forth steps that must be taken before making a solicitation pursuant to division (c).

Division (e) likewise has no counterpart in MR 7.3 and states that a solicitation sent within thirty days of an accident or disaster giving rise to a potential personal injury or wrongful death claim shall include the document entitled "Understanding Your Rights," the full text of which is set forth in division (d).

Division (f) is substantively identical to MR 7.3(d).

7.3:102 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 7.3: DR 2-104(A).

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 7.3(a): DR 2-101(F)(1).

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 7.3(b): None.

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 7.3(c): DR 2-101(F)(2).

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 7.3(d): DR 2-101(F)(4).

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 7.3(e): DR 2-101(H).

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 7.3(f): DR 2-103(D)(4).

7.3:200 Prohibition of For-Profit In-Person, Live Telephone, and Real-Time Electronic Solicitation

  • Primary Ohio References: Ohio Rule 7.3(a)
  • Background References: ABA Model Rule 7.3(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.64, 2.84-2.86, 2.168
  • Commentary: ABA/BNA § 81:2001; Wolfram § 14.2.5

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 §§ 2.64, 2.84-2.86 (1996).

Solicitation - In general: Beyond the general restrictions on lawyer advertising (Rule 7.2) and on false, misleading, or nonverifiable claims (Rule 7.1), substantial additional controls are imposed on (1) solicitation by in-person, live telephone, real-time electronic contact (e.g., "chat rooms"), and (2) direct mail, recorded, or electronic solicitation. The former are treated in this section. The latter are addressed in section 7.3:400.  Section 7.3:300 deals with additional restrictions applicable to all forms of solicitation.

For-profit, in-person, live telephone, and real-time electronic contact: In a number of cases, the U.S. Supreme Court has stressed that the perils associated with in-person solicitation undertaken for pecuniary gain justify allowing a state to ban such practices. See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). Two principal concerns emerge.

The first is the significant possibility of overreaching that might arise in this interactive context. An individual may be hard pressed to ignore the persuasive arguments of a trained advocate, particularly where the argument can be tailored at the moment to the individual's reservations about representation. This is particularly true for the individual whose judgment may be impaired by the stress of the life events that have sparked the lawyer's solicitation in the first place. Direct in-person, live telephone, or real-time electronic contact places pressure on a prospective client to make an immediate yes-or-no decision about representation rather than reflecting on the matter. Such solicitation may also involve an invasion of privacy in a way that media advertising or mail does not.

Second, while in-person, live telephone, and real-time electronic solicitation will not always be abusive, problems of proof make it hard to determine on a case-by-case basis exactly what occurred in the exchange. It would be the lawyer's word against the client's, should a dispute arise. Other forms of advertising, in contrast, leave a written trail. Taken together, the increased potential for abuse and difficulties of proof warrant greater regulation of in-person solicitation for pecuniary gain than for other forms of advertising and solicitation.  Shapero v. Ky. Bar Ass'n, 486 U.S. 466 (1988) (making these distinctions in upholding lawyer's right to engage in targeted-mail solicitation); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (drawing these distinctions to uphold lawyer's right to solicit clients through newspaper advertising containing legal advice).

Given the freedom to regulate in this area, Ohio has chosen in Rule 7.3(a) to ban a lawyer from making an "in-person, live telephone, or real-time electronic contact [to] solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain," unless the target is a lawyer ((a)(1)) or has family, close personal, or a prior professional relationship with the contacting lawyer ((a)(2)). (Division(f) excepts contact made in connection with a prepaid or group legal services plan from the prohibitions of division (a). See section 7.3:500.)

Comments [1]-[3] discuss the rationale underlying the 7.3(a) prohibition -- in sum, it is the "potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a prospective client known to need legal services. . . . The situation is fraught with the possibility of undue influence, intimidation, and overreaching." Rule 7.3 cmt. [1]. "This potential for abuse . . . justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services." Rule 7.3 cmt. [2]. Comment [3] further states the case for use of advertising and written, recorded, or electronic communication in transmitting information to a prospective client. Rule 7.3 cmt. [3]. Note, however, that Comment [1] limits its argument for the 7.3(a) prohibition to situations involving a prospective client "known to need legal services." Rule 7.3(a), however, is not so limited and precludes all interpersonal solicitations significantly driven by pecuniary gain, other than those excepted by Rule 7.3(a)(1) & (2).

Comment [4] articulates the basis for the exceptions set forth in Rule 7.3(a)(1) & (2), which exceptions apply to communications under division (c) as well -- that "[t]here is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has [a] close personal or family relationship." The comment notes that the likelihood is also less "in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain" or when the recipient is a lawyer. Comment [4] also makes clear that division (a) does not prohibit a lawyer from participating in the constitutionally protected activities of public or charitable legal-service organizations or bona fide political, civic, or other organizations "whose purposes include providing or recommending legal services to its members or beneficiaries." Rule 7.3 cmt. [4].

And Comment [5] reminds that "even permitted forms of solicitation can be abused," and thus are subject to the Rule 7.1 ban on false, misleading, or nonverifiable information, on the Rule 7.3(b)(2) ban on coercive or harassing solicitation, and on the Rule 7.3(b)(1) ban on soliciting a person who has made known to the lawyer a desire not to be solicited.

Finally, as Comment [7] makes clear,

none of the requirements of Rule 7.3 applies to communications sent in response to requests from clients or prospective clients. [Nor do][g]eneral announcements . . . including changes in personnel or office location . . . constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this rule.

Rule 7.3 cmt. [7] (emphasis and bracketed material added).

Cases involving lawyers who were sanctioned for violating the analogous restriction on solicitation in former DR 2-101(F)(1) (direct in-person or telephone solicitation)) under the Code include Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 754 N.E.2d 219 (2001) (respondent responsible for actions of his employee, whose original telephone solicitation violated OH DR 2-101(F)(1), followed by six-page fax letter from respondent, which violated OH DR 2-104(A)); Cincinnati Bar Ass'n v. Rinderknecht, 79 Ohio St.3d 30, 679 N.E.2d 669 (1997) (lawyer sanctioned for using telephone solicitors to call accident victims for possible representation); Cuyahoga County Bar Ass'n v. Andrews, 64 Ohio St.3d 37, 591 N.E.2d 1212 (1992) (lawyer sanctioned for soliciting prospective client by telephone; violation of former DR 2-103(A)). In accord with Andrews regarding violation of 2-103(A) is Disciplinary Counsel v. Rafidi, 114 Ohio St.3d 336, 2007 Ohio 3674, 872 N.E.2d 265 (in-person solicitation of nonlawyer criminal suspect charged with drug-trafficking violated 2-103(A).

Numerous bar opinions also cautioned against such conduct in a variety of settings. E.g., Bd. of Comm'rs on Grievances & Discipline Op. 99-5, 1999 Ohio Griev. Discip. LEXIS 6 (Oct. 8, 1999) (in-person distribution of law firm brochures violated OH DR 2-101(F)(1)); Bd. of Comm'rs on Grievances & Discipline Op. 91-26, 1991 Ohio Griev. Discip. LEXIS 3 (Dec. 6, 1991) (finding telephone solicitation of potential business clients impermissible); Bd. of Comm'rs on Grievances & Discipline Op. 90-2, 1990 Ohio Griev. Discip. LEXIS 9 (Feb. 23, 1990) (telemarketing solicitation campaign). See Bd. of Comm'rs on Grievances & Discipline Op. 2002-6, 2002 Ohio Griev. Discip. LEXIS 6 (June 14, 2002) (use of in-person or telephone communication to inquire whether out-of-state corporate party is represented by counsel improper under OH DR 2-101(F)(1)). If a lawyer for a corporation engaged in providing tax-consulting services sought to provide private legal representation to the corporation's clients on matters relating to issues on which the corporation had worked, the lawyer could not engage in in-person solicitation of those clients of the corporation. Bd. of Comm'rs on Grievances & Discipline Op. 92-17, 1992 Ohio Griev. Discip. LEXIS 4 (Oct. 16, 1992) (discussing this among a host of problems in engaging in such representation). And, to the extent a lawyer offered dial-a-lawyer services whereby the lawyer gives legal advice to callers over the phone for a fee, in instances in which the lawyer was unable to provide the advice sought over the phone, the attorney had to so inform the telephone client. Moreover, the lawyer should not recommend that the client retain the lawyer or someone associated with him or her, unless the caller asked for advice regarding employment of a lawyer. Bd. of Comm'rs on Grievance & Discipline Op. 92-10, 1992 Ohio Griev. Discip. LEXIS 11 (Apr. 10, 1992). Accord Bd. of Comm'rs on Grievances & Discipline Op. 99-9, 1999 Ohio Griev. Discip. LEXIS 10 (Dec. 2, 1999) (offering the same advice with respect to follow-up to on-line provision of legal services). Excluded from this restriction were lawyer-to-lawyer communications through which one lawyer solicited work on a matter being handled by the contacted attorney. Bd. of Comm'rs on Grievances & Discipline Op. 2002-6, 2002 Ohio Griev. Discip. LEXIS 6 (June 14, 2002) (opining that such communication was ethically appropriate; "DR 2-101(F)(1) does not apply to a lawyer's communication with another lawyer." Id. at *5.). As noted, the lawyer exclusion is now contained in Ohio Rule 7.3(a)(1).

One case decided under the Code presents facts that would be a close call under the Rule 7.3. In Disciplinary Counsel v. Ross, 107 Ohio St.3d 191, 2005 Ohio 6179, 837 N.E.2d 773, respondent visited a seriously injured accident victim in the hospital a few days after the accident. Respondent recommended that the victim allow respondent to represent him in pursuing claims arising out of the accident. The Supreme Court found that in doing so, Ross had violated former OH DR 2-103(A) and 2-104(A). For these and numerous other violations, Ross was disbarred. The interesting question under Rule 7.3(a) arises from the fact that Ross was married to the victim's cousin, and thus, arguably at least, the Rule 7.3(a)(2) exception to the prohibition against in-person solicitation of professional employment would have applied, since the person contacted "ha[d] a family, close personal, or prior professional relationship with the lawyer." (A similar exception existed under DR 2-104(A)(1), but the Court did not address the issue.) Since the word "close" modifies "personal . . . relationship," but not "family . . . relationship," being married to the victim's cousin might be sufficient to invoke the exception. Even if so, however, the surrounding facts -- visiting a seriously injured person in the hospital just a few days after the accident, apparently without anyone else present -- strongly suggests that another part of Rule 7.3 would have been applicable: Rule 7.3(b)(2) prohibits solicitation, even of family members, if "the solicitation involves coercion, duress, or harassment." One could persuasively argue that such a solicitation in the circumstances was conducive to overreaching and coercion. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460-68 (1978) (upholding discipline of lawyer who visited accident victim in hospital armed with employment contract).

Giving unsolicited legal advice: Although the Task Force's Ohio Code Comparison to Rule 7.3 states that 7.3 "embraces the provisions of DR 2-104(A)," it does so only by inference. The basic prohibition of former DR 2-104(A), against accepting employment from a nonlawyer to whom the lawyer has given unsolicited advice that the nonlawyer should seek counsel or take legal action, nowhere appears in Rule 7.3 or its comments. The focus of Rule 7.3 is on solicitation, not on advice or acceptance of employment as a result of that advice. Nevertheless, some of the exceptions to the general 2-104(A) prohibitions show up indirectly in the Rule 7.3 scheme. Thus, Code exception (1) (the lawyer could accept employment from a close friend, relative, or former client) is now reflected in Rule 7.3(a)(2), permitting direct interpersonal solicitation of persons in these categories. (Rule 7.3(a)(1), allows similar solicitation if the prospective client is a lawyer.) The exceptions set forth in former DR 2-104(A)(2) & (3) are comparable to the recognition of lawyer participation in prepaid or group legal-service plans in Rule 7.3(f). Exception (4) was not really an exception to accepting employment; it merely allowed a lawyer to speak or write publicly on legal topics "[w]ithout affecting the lawyer's right to accept employment." The final 2-104(A) exception, (5), allowed a lawyer to accept but not seek employment of persons contacted for the purpose of obtaining their joinder in a class action. While Ohio Rule 7.3 does not address the class-action issue expressly, ABA, Annotated Model Rules of Professional Conduct 536 (6th ed. 2007) (commentary), states that the advertising and solicitation rules "do not prohibit 'communications authorized by law, such as notice to members of a class in class action litigation,'" citing MR 7.2 cmt. [4] (which is identical to Ohio Rule 7.2 cmt. [4]). See also, under the former OHCPR, Bd. of Comm'rs on Grievances & Discipline Op. 92-2, 1992 Ohio Griev. Discip. LEXIS 19 (Feb. 14, 1992), discussed in section 7.3:300, at "Class actions."

The bottom line under the Rules is that a lawyer can offer unsolicitated legal advice, so long as it does not run afoul of Rules 7.1-7.3 or 4.3, which prohibits such advice to an unrepresented person with whom the lawyer's client is known or reasonably should be known to have the possibility of conflicting interests, other than the advice to secure counsel.

7.3:210 Solicitation by Non-Profit Public-Interest Organization

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 § 2.64 (1996).

The Ohio Rule 7.3(a) restriction on in-person, live telephone, or real-time electronic solicitation is limited to instances in which "a significant motive . . . is the lawyer's pecuniary gain . . . ." If the lawyer has no significant pecuniary motive, such solicitation is permissible. See  In re Primus, 436 U.S. 412 (1978) (drawing this distinction; ACLU lawyer soliciting client by mail to offer free legal services).

Two policies support this distinction. The first is an assumption that the likelihood for abuse is substantially lessened where the lawyer is motivated by considerations other than pecuniary gain. Ohio Rule 7.3 cmt. [4]. The second is a recognition that representation undertaken for other than pecuniary gain is often motivated by social, political or associated concerns afforded special protection under the Constitution. "Thus, lawyers affiliated with a group formed to further a group right or interest may claim greater constitutional protection for political expression than is accorded under the commercial-speech analysis to lawyers soliciting primarily for personal gain." ABA, Annotated Model Rules of Professional Conduct 535 (6th ed. 2007) (commentary). See further, as to legal-services organizations, Rule 7.3(f), discussed at section 7.3:500.

In this regard, Comment [4] provides that

division (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal service organizations or bona fide political, social, civic, fraternal, employee, or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.

Rule 7.3 cmt. [4].

Under the former OHCPR, the Board of Commissioners recognized that such solicitation not for pecuniary gain is constitutionally protected. Bd. of Comm'rs on Grievances & Discipline Op. 90-2, 1990 Ohio Griev. Discip. LEXIS 9 (Feb. 23, 1990) (citing Primus). In a subsequent opinion, the Board specifically found that in-person solicitation, not undertaken for pecuniary gain, did not run afoul of the ethics rules. Bd. of Comm'rs on Grievances & Discipline Op. 90-11, 1990 Ohio Griev. Discip. LEXIS 18 (June 15, 1990). In Opinion 90-11, the Board determined that an in-person offer by a legal-aid lawyer to represent an indigent defendant, whom the lawyer observed in court, was not prohibited under the Code. In construing that provision, the Board stated that

the [OHCPR] does not prohibit a lawyer from communicating with persons whose legal rights may be in jeopardy when the lawyer is not thereby intending to gain paying clients. Prohibited solicitation would occur if the lawyer recommends employment for herself as a private practitioner.

Op. 90-11, 1990 Ohio Griev. Discip. LEXIS 18, at *1. The Board found that not only did the conduct not violate either former OH DR 2-103(A) or 2-104(A), but it promoted the important value of providing legal services to those who cannot afford them.

It should be noted that the distinction here is not whether the lawyer receives monetary remuneration for the representation. Some actions taken on a pro bono basis to further a cause, for example, may result in a court award of attorney fees, but that in and of itself does not trigger the Ohio Rule 7.3(a) prohibitions. The key is the motivation behind the solicitation. Only if pecuniary gain was a "significant" motivation do the prohibitions in Ohio Rule 7.3(a) apply. See  In re Primus, 436 U.S. 412 (1978) (finding solicitation by ACLU in case in which court-awarded attorney fees were requested did not establish a significant pecuniary motivation for the solicitation).

7.3:220 Solicitation of Firm Clients by a Departing Lawyer

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 § 2.168 (1996).

An important concern is the extent to which a lawyer who ends an employment relationship with other lawyers can pursue the former firm's clients. On the one hand, any restriction on this practice would seem like a limitation on the lawyer's right to practice law and the client's right to counsel of choice. On the other hand, in some circumstances, such conduct might be seen as tortious interference with a business relationship or a breach of fiduciary duty owed the firm. See Madorsky v. Bernstein, 89 Ohio App.3d 550, 626 N.E.2d 694 (Cuyahoga 1993) (recognizing that claim for tortious interference with business relationship can apply to activities that undercut an attorney-client relationship). One court of appeals held that, to the extent the departing lawyer contacted firm clients the lawyer had been personally representing, the conduct was permissible, Sonkin & Melena Co., L.P.A. v. Zaransky, 83 Ohio App.3d 169, 614 N.E.2d 807 (Cuyahoga 1992) (rejecting tortious interference claim in such situation), but doubt is cast on this conclusion by the Supreme Court's subsequent decision in Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), where on similar facts the Supreme Court upheld reversal of the trial court's grant of summary judgment on the tortious interference count. Use of a firm's client list to identify those to contact can also constitute conversion of a trade secret. See Siegel, 85 Ohio St.3d 171, 172-73, 707 N.E.2d 853, 856 (syllabi five & six) (trial court granted summary judgment for defendant lawyer, who allegedly used her old firm's client list in making solicitation mailings, and for her new law firm, also a defendant, on trade-secret misappropriation count; the Supreme Court affirmed the court of appeals' reversal and remand for trial). Compare Sonkin & Melena (rejecting such a claim because facts did not establish client list as trade secret). Siegel is further discussed at sections 1.1:390 and 1.2:400.

Several ethics opinions have approved departing-lawyer communications soliciting business from clients with whom the lawyer worked at the former firm. See Bd. of Comm'rs on Grievances & Discipline Op. 98-5, 1998 Ohio Griev. Discip. LEXIS 5 (Apr. 3, 1998) (when a lawyer departs from a firm, both lawyer and firm can alert their clients of the change and, without disparaging the competence of the other, express their desire to continue the representation); Cleveland Bar Ass'n Op. 89-5 (Feb. 23, 1990); Ethics Opinion, Cincinnati Bar Rep., July 8, 1986, at 7. Nevertheless, the Supreme Court ruled in Siegel that acting in accordance with the ethical rules does not immunize such conduct from civil claims for tortious interference with contract.  85 Ohio St. 3d 171, 178-79, 707 N.E.2d 853, 859 (compliance with OHCPR is relevant in determining whether tortious interference occurred, but it provides no absolute defense to such actions). Both the tortious interference and trade-secrets aspects of the Siegel opinion are discussed in section 1.1:390.

As a general rule, contacts with former clients of the lawyer are more likely to be permissible than contacts with firm clients the lawyer did not represent. Although addressing a slightly different issue (what lawyer-client relationship is required to trigger former OH DR 2-110(A)(2) duties upon withdrawal), the Siegel Court, in that context, adopted a restrictive definition of "client." Firm clients on whose matters an associate works are not "clients" of the associate, but clients of the firm. As the Court saw it, the associate "never entered into a contractual agreement with those clients under which she personally was obligated to provide legal services."  85 Ohio St.3d at 177, 707 N.E.2d at 859. For further consideration of the potential liability that might arise from particular contacts attendant to changing employment, see generally Robert W. Hillman, Hillman on Lawyer Mobility: The Law and Ethics of Partner Withdrawals and Law Firm Breakups (2d ed. 1998 & Supp. 2007) (providing an in-depth analysis of the conflicting nationwide case law on the numerous issues that arise in this context).

7.3:300 Prohibitions Applicable to All Forms of Solicitation

  • Primary Ohio References: Ohio Rule 7.3(b)
  • Background References: ABA Model Rule 7.3(b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.30, 2.88
  • Commentary: ABA/BNA § 81:2001; Wolfram § 14.2.5

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 §§ 2.30, 2.88 (1996).

Ohio Rule 7.3(b) states two instances in which any sort of solicitation -- whether "by written, recorded, or electronic communication or by in-person, [live] telephone or real-time electronic contact even when not otherwise prohibited by division (a)," and whether or not targeted or untargeted -- is banned. They are:

(1) [if] the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; [or]

(2) [if] the solicitation involves coercion, duress, or harassment.

Ohio Rules 7.3(b)(1) & (2).

The exact contours of the first prohibition are a bit unclear. In a few instances the desire of a prospective client not to be solicited may be stated quite directly to the lawyer. For example, a client having received an initial solicitation may ask not to be contacted again. Or a client that has a falling out with its attorney may make such a request. Sometimes the communication is not so direct, but is still reasonably clear. If a prospective client is registered on a "Do Not Call" list, for example, that listing should be respected and would thus limit at least one method of communicating with the prospective client. Cf. Ohio Rule 7.3 cmt. [2]. In discussing the permissibility of e-mail solicitation, the Board of Commissioners opined under the Code that, in making such contact, a lawyer should provide the recipient with a way to opt out from receiving further e-mails, Bd. of Comm'rs on Grievances & Discipline Op. 2004-1, 2004 Ohio Griev. Discip. LEXIS 1 (Feb. 13, 2004), which if exercised must then be honored.  There is no reason to think that this aspect of Opinion 2004-1 does not remain good advice under the Rules.

A more difficult situation arises where the lawyer is aware that a particular prospective client does not wish to be contacted, but the lawyer is sending out a large untargeted mailing or e-mail to every person or entity in a particular group of which that prospective client is a member. Under the Rule, the lawyer would appear to be under a duty to purge the prospective client from the larger group before sending out the solicitation. But suppose the lawyer does not know that the prospective client is in the group being solicited. Since the Rule prohibits all solicitations to one whose desire not to receive them is known, presumably even such solicitations inadvertently sent would technically violate the Rule.

Comment [5] warns that "any further efforts" made to contact a prospective client after receiving no response to a letter or other communication "may violate the provisions of Rule 7.3(b)." Ohio Rule 7.3 cmt. [5]. The implication is either that such follow-up may constitute a form of harassment under 7.3(b)(2) or that it may violate the do-not-solicit-me-further inhibition of 7.3(b)(1), or both.

By its terms, the division (b) prohibitions apply across the board, even when the person contacted is a lawyer or is a person with a family, close personal, or prior professional relationship with the contacting lawyer, and irrespective of the mode of contact. While both the Model Rule and Ohio Rule 7.3(b) delete the word "live" before "telephone," it must be read in, inasmuch as it is only "live telephone" contact that is "prohibited by division (a)."

Regardless of the means of communication used, the solicitation can be either targeted or untargeted, and Rule 7.3(b) applies to both. Divisions (c) and (d), and in most cases division (e) as well, are limited to targeted communications and are dealt with in section 7.3:400.

An untargeted communication is one sent to individuals or entities in situations where there is no knowledge by the soliciting lawyer that the subject is in need of legal services in a particular matter. A mass mailing is a typical example. See, e.g., Bd. of Comm'rs on Grievances & Discipline Op. 91-26, 1991 Ohio Griev. Discip. LEXIS 3 (Dec. 6, 1991) (approving mail solicitation to potential business clients without a specific known need). This sort of solicitation was treated as general advertising.  That interpretation, however, has been called into question by a Board opinion issued under the Rules, Opinion 2007-5, which is extensively discussed (and criticized) in section 7.3:400 infra.

Other solicitations are directed to individuals who are known to have particular legal problems. Rule 7.3(c) describes this as "written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client whom the lawyer reasonably believes to be in need of legal services in a particular matter." This solicitation is targeted and potentially presents more problems of overreaching than does untargeted general solicitation. Therefore, additional restrictions are imposed on its use. These restrictions are addressed in section 7.3:400.

Although not expressly set forth in Rule 7.3(b) itself, Comment [5] reminds that any solicitation that is false or misleading within the meaning of Rule 7.1 is also prohibited, in addition to the conduct proscribed by divisions (b)(1) & (2).

Constitutional considerations: It seems reasonably certain that Ohio Rule 7.3(b) -- precluding written, recorded, or electronic solicitation that is coercive, harassing, or contrary to the recipient's wishes -- is within the range of constitutionally permissible state regulation. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 57.8, at 57-15 (3d ed. Supp. 2008) ("[c]ertainly [MR 7.3(b)(1)] would be upheld"; authors express vagueness concerns as to MR 7.3(b)(2), but conclude that it is "probably constitutional" in light of drafter's contemplation that it referred to "communications sent immediately after a death to the decedent's survivors, and others of that nature," "but should not be stretched further.") This analysis of the Model Rule is not directly transferable to the same language in Ohio Rule 7.3(b)(2), inasmuch as Ohio Rule 7.3(e) permits such solicitation within thirty days of an accident causing death or injury, but only if the text of “Understanding Your Rights,” set forth in division (e), is included with the solicitation.  See section 7.3:400.  In our opinion, a solicitation sent within thirty days of death or injury is probably “immediate” enough to fit within the Hazard and Hodes conclusion that (b)(2) is constitutional, particularly given the additional protections afforded by the mandatory “Understanding Your Rights” language.  Apart from Rule 7.3(e), however, we are not persuaded that the “coercion, duress, or harassment” language of Ohio Rule 7.3(b)(2) raises constitutional vagueness concerns in any event.

7.3:400 Additional Requirements for Targeted Written, Recorded, and Electronic Solicitation

  • Primary Ohio References: Ohio Rule 7.3(c)-(e)
  • Background References: ABA Mode Rule 7.3(c)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.30
  • Commentary: ABA/BNA § 81:2011; Wolfram § 14.2.5

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 § 2.30 (1996).

In order to assure that targeted solicitations are not misleading or overreaching, Ohio Rule 7.3 imposes five additional requirements beyond those placed on untargeted solicitation. Rule 7.3(c)-(e). Many of these restrictions help address the potential harms arising from targeted direct-mail solicitation recognized by the U.S. Supreme Court in Shapero v. Ky. Bar Ass'n, 486 U.S. 466 (1988) -- that a personalized, targeted letter could imply greater familiarity with the case than the lawyer has or that the recipient's problem is more dire than it is in fact. The Court also raised as a concern that an inaccurately targeted and personalized letter could tell a person they have a problem when they do not, or might, because it is misdirected, give erroneous legal advice under the circumstances.  Id. at 476.

The first three requirements are set forth in subdivisions (c)(1)-(3); unless the recipient is a person specified in divisions (a)(1) (lawyer) or (a)(2) (family, personal, or prior professional relationship with sender), they apply to all targeted solicitations -- i.e.,

every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client whom the lawyer reasonably believes to be in need of legal services in a particular matter . . . .

Rule 7.3(c). This provision is comparable to former OH DR 2-101(F)(2) with two important differences: First, under the Rule, the prospective client must be one whom the lawyer "reasonably believes" to be in need of legal services in a particular matter, 7.3(c), and about whom the lawyer is "aware of the . . . specific legal need of the addressee." 7.3(c)(1). In contrast, under the former disciplinary rule, the obligations were imposed with respect to a person or persons who "may" be in need of specific legal services because of a condition or occurrence that is "known or, upon reasonable inquiry, could be known" to the soliciting lawyer. This change would appear to narrow significantly the instances in which a lawyer will have to comply with the targeted-solicitation provisions. See, for example, the discussion of Bd. of Comm'rs on Grievances & Discipline Op. 2006-4 (Apr. 7, 2006) later in this section. Alas, this seemingly straightforward language of 7.3(c) was ignored by the Board in its Opinion 2007-5, 2007 Ohio Griev. Discip. LEXIS 5 (June 8, 2007), also discussed this section infra. Second, the Rule, while more limited in the first respect, applies to all such communications, whether written, recorded or electronic; the old rule was limited to written solicitation. (For a targeted-mail disciplinary decision under the Code, see Office of Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315, 677 N.E.2d 1190 (1997) also discussed this section infra.)

The three requirements that must be met under Rule 7.3(c) are: First, the communication must "[d]isclose accurately and fully the manner in which the lawyer or law firm became aware of the identity and specific legal need of the addressee." Rule 7.3(c)(1). This disclosure helps recipients understand how they were selected by the attorney and protects recipients from assuming that they have a relationship with the lawyer if one has not been established previously.

Second, the communication must "[d]isclaim or refrain from expressing any predetermined evaluation of the merits of the addressee's case." Rule 7.3(c)(2). This restriction on a predetermined evaluation of the merits protects recipients from being swayed into contacting the lawyer on the basis of puffing about the strength of their claim. It also serves to reinforce the notion that every case is unique and cannot be evaluated accurately until sufficient factual investigation has been undertaken.

Third, the communication must "[c]onspicuously include in its text and on the outside envelope, if any, and at the beginning and ending of any recorded or electronic message the recital - 'ADVERTISING MATERIAL' or 'ADVERTISEMENT ONLY.'" Rule 7.3(c)(3). See Shapero v. Ky. Bar Ass'n, 486 U.S. 466, 477 (1988) (suggesting state could require direct mail advertising to be marked as advertising). (Former micromanaging under OH DR 2-201(F)(2)(e) on font size and print color has been eliminated and replaced by the "conspicuous" requirement. Former guidance in Bd. of Comm'rs on Grievance & Discipline Op. 2004-1, 2004 Ohio Griev. Discip. LEXIS 1 (Feb. 13, 2004), on the appropriate notification in electronic messages has likewise been superseded by the Rule.)

By requiring the "advertising material/advertisement only" language, the Rule helps assure that the recipient will not treat the communication as official in nature.  In re R.M.J., 455 U.S. 191, 206 n.20 (1982) (Court endorsed use of such labeling to assure that nonlawyers receiving unrequested mail from lawyers would not be "frighten[ed]" by this unusual event). It also allows the recipient to throw it away unopened if so inclined.

The recital requirement poses difficulties where a lawyer seeks to send a multi-purpose communication. For example, a letter asking an individual to serve as a witness in a pending action and also soliciting the individual's business as an additional claimant would be improper. As an advertisement, the ADVERTISEMENT ONLY designation would have to go on the envelope. But to do so would harm the interests of the existing client, since the recipient might be more likely to discard the letter and thereby remain unaware of the request for testimony on the existing client's behalf. Cincinnati Bar Ass'n Op. 95-96-04 (Nov. 21, 1995).

Over and above the requisites of division (c), a targeted communication to a person who is a defendant in a civil action cannot be sent until the defendant has been served in the action. To assure this, the lawyer must check the docket of the court where the action was filed and verify that service has been perfected or service by publication completed. Rule 7.3(d). Failure to do so is subject to sanction.  See Akron Bar Ass'n v. Amourgis, 113 Ohio St.3d 32, 2007 Ohio 974, 862 N.E.2d 501 (decided under comparable language of former DR 2-101(F)(4)). By its terms, Rule 7.3(d) does not apply with respect to defendants who are debtors in a potential or actual bankruptcy action.

The requirements of divisions (c) and (d) are inapplicable if the recipient is a lawyer or "has a family, close personal, or prior professional relationship with the lawyer," as specified in division (a)(1) or (2). Cf. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999) (noting that the Board of Commissioners on Grievances and Discipline has approved mail solicitation of existing clients without inclusion of the advertising recital). (Former OH DR 2-101(F)(3), stating that these provisions do not apply to qualifying legal aid and public defender offices, has not been retained in the new Rules.)

Finally, Ohio Rule 7.3(e) requires that any communication soliciting professional employment sent to accident or disaster victims or their relatives within thirty days of the event must include an "Understanding Your Rights" disclosure, the text of which is included in Rule 7.3(e). This consists of a noninclusive nine-point checklist designed to inform the victim of "some of the important issues you should consider," such as the appropriateness of hiring an attorney (6), how to find a lawyer (7), checking the lawyer's qualifications (8), and the matter of cost (9).

The rationale for inclusion of division (e) (which is not a part of the Model Rule), is set forth in Comment [7A]. Regulation in this area must accommodate two competing principles:

The use of written, recorded, and electronic communications to solicit prospective clients who have suffered personal injuries or the loss of a loved one can potentially be offensive. Nonetheless, it is recognized that such communications assist potential clients in not only making a meaningful determination about representation, but also can aid potential clients in recognizing issues that may be foreign to them.

Ohio Rule 7.3 cmt. [7A]. Ohio Rule 7.3(e) imposes a restriction in this situation – the "Understanding Your Rights" information must be conveyed with any solicitation made within thirty days of an occurrence giving rise to a potential personal injury or wrongful death claim. Id. With the inclusion of this mandatory disclosure as a safeguard, the drafters evidently determined that the need for timely information trumped concern that recipients might well find such contact offensive.

In January 2006, the Ohio Supreme Court published for comment an amendment to DR 2-101(H), the Code analog to Rule 7.3(e), that would have prohibited such contact with accident or disaster victims or a relative of that person until thirty days after the accident or disaster. The responsive comments, however, were overwhelmingly negative, and the Court withdrew the proposal. See, T.C. Brown, Court Drops Lawyer-Solicitation Rule, Cleveland Plain Dealer, Sept. 1, 2006, at B1. See generally on the subject, Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995) (approving Florida restriction prohibiting lawyer from sending targeted direct-mail solicitation to accident or disaster victim or that person's relative for 30 days following the accident or disaster).

An ethics opinion addressing the "targeted" communication issue under the Code is Bd. of Comm'rs on Grievances & Discipline Op. 2006-4, 2006 WL 20000107 (Apr. 7, 2006). In Opinion 2006-4, the attorney asked whether, in connection with opening a new law practice, he could send a personalized letter and biography to members of the bar and to potential business-entity clients. While "wide berth" was given to the sending of announcement cards and biographical information, such was not the case with personalized letters. Whereas the former information could be provided to both fellow members of the bar and to business entities, if coupled with a personalized letter the result varies with the addressee. Such a letter to members of the bar, "[a]nnouncing the opening of a law practice through a personalized letter to members of the bar does not trigger the requirements for direct mail solicitation in DR 2-101(F)(2). The letter is going to a group who practices law, not a group in need of legal services." Id. at *2. But

[a]nnouncing the opening of a law practice through a personalized letter to business entities who may need legal services in the attorney[']s areas of legal practice triggers the requirements for direct mail solicitation in DR 2-101(F)(2). It is in essence a solicitation by direct mail addressed to persons or groups of persons who may be in need of specific legal service by reason of a circumstance, condition, or occurrence that is known or, upon reasonable inquiry, could be known to the soliciting lawyer or law firm . . . . The lawyer is not sending a general mailing to all businesses, if so he or she would not use a personalized letter. The attorney is targeting businesses needing legal services in areas [in which] the attorney practices.

Id. (bracketed material and ellipsis added for clarity). The Board cited to none of its five prior targeted-communication opinions (discussed infra), four of which support the opposite conclusion. Irrespective of whether the Board may have been drawing too fine a line in imposing the direct-mail solicitation provisions of the Code on the personalized letter to businesses, it seems reasonably clear that such a mailing should not trigger the requirements of Rule 7.3(c), inasmuch as there was no indication that the lawyer had a reasonable belief that the recipient was "in need of legal services in a particular matter" or that the lawyer was aware of the . . . specific legal need of the addressee."

It did not take the Board of Commissioners long to conclude otherwise.  In Bd. of Comm'rs on Grievances & Discipline Op. 2007-5, 2007 Ohio Griev. Discip. LEXIS 5 (June 8, 2007), the Board confronted this very issue.  As the Board framed the question:

Is a lawyer's or law firm's advertising of legal services through a personalized letter addressed to a contact person of a prospective business client a direct mail solicitation subject to the requirements of Rule 7.3(c), or a general announcement not subject to the requirements of Rule 7.3(c)?

Id. at *1.  In its answer, the Board saw the basic distinction as one between direct mail and general announcements.  The determining factor for the Board was whether the communication involves a letter personalized to the recipient.  If it does, the restrictions on direct mail should apply.  Underlying this determination was the belief that "[p]ersonalization implies a familiarity with the recipient and the recipient's matters, whether general legal needs or specific legal needs."  Id. at *8.

In doing so, however, the Board expressly disregarded the language of the Rule, which imposes the restrictions only when the lawyer reasonably believes the recipient to be in need of legal services "in a particular matter."  Even though the Board conceded that

there is no indication that the lawyer or law firm would have a reasonable belief that the businesses listed on the membership list of a trade organization would be in need of legal services in a "particular matter,"

id. at *7-8, it is likely that there would be a reasonable belief that the businesses "would have a 'general need' for the legal services that the lawyer or law firm provides." Id. at *8 (emphasis added; the Board does not explain why it has placed quotation marks around "general need"; that phrase, unlike "specific legal need," is not found in the Rule). Given this "general need,"

the personalization of an advertising letter to a prospective client, even in the absence of a reasonable belief of legal needs in a "particular matter," is enough to trigger the direct mail solicitation requirements of Rule 7.3(c).

Id. At its core, the Board's opinion asks the wrong question.  The dichotomy in this situation is not between general announcements and personalized direct mail; rather, it is between personalized direct mail that addresses a "particular matter" and that which addresses mere "general need."  A letter that says "you were in a traffic accident and I can help you" is very different from a letter that says "I know you are a business and therefore may need tax advice – I do tax work."  Personalization of the addressee simply isn't the test the Rule articulates.

The Board's opinion is also flawed in its failure to make any attempt to harmonize the Ohio Rule with the identical "particular matter" language in the Model Rule.  As is clearly stated in Laws. Man. on Prof. Conduct (ABA/BNA) § 81:601 (2007), the MR 7.3(c) requisites apply "[i]f a prospective client is known to be in need of legal services in a particular matter."  Hazard and Hodes reach the same conclusion, in a more detailed analysis of the MR 7.3(c) language.  Thus, they leave no doubt that a "targeted" advertisement is one "directed to particular individuals who were known or thought by lawyers to be in need of legal services in a particular matter"; such communications "contemplate a specific legal matter."  2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 57.7, at 57-13 (3d ed. Supp. 2008).  To underscore their point, the authors further state that

the labeling requirement [for targeted mailings] does not apply to advertising material sent to people not known to need legal services in a particular matter.  This means that a general announcement about a law firm's services could be sent to a recipient list that was generated otherwise than by some particular need for legal services [precisely the circumstance addressed in Opinion 2007-5].

Id. § 57.9, at 57-18 to -19 (emphasis in original; bracketed material added).

Even more troubling is the Board's failure to acknowledge relevant precedent decided under the similar Code provision, OH DR 1-102(F)(2) (possible need of "specific legal service by reason of a circumstance, condition, or occurrence that is known, or upon reasonable inquiry, could be known to the soliciting lawyer"), which precedent is another touchstone for interpreting Rules having comparable Code analogs.  These include disciplinary decisions by the Ohio Supreme Court as well as the Board's own prior advisory opinions – the great majority of which were contrary to the advice dispensed in Opinion 2007-5. 

Two Supreme Court opinions are pertinent; first, in Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), the Court stated that the "Advertisement Only" and other (F)(2) limitations applied to "written direct mail solicitations . . . made to persons who may be in need of specific legal services . . . ."  Id. at 177, 707 N.E.2d at 859.  The other Supreme Court opinion, Office of Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315, 677 N.E.2d 1190 (1997), undermines the Board's attempt in Opinion 2007-5 to equate personalization with targeting (see Op. 2007-5, at *8, quoted above); Yurich makes clear that these are distinct attributes:

Respondent not only "targeted" his mailing, but through the conveniences of computer programming, he also was able to "personalize" it . . . .

Id. at 318, 677 N.E.2d at 1192.  The Court then drew on language of the United States Supreme Court in Shapero, which also noted that the two concepts are not the same:  "'A letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent.'"  Id. (quoting 486 U.S. 466, 476 (1988)).

In addition, we are aware of six Board opinions which dealt with the specific-legal-need issue under the Code; four of these are contrary to the conclusion reached in Opinion 2007-5.  The other two (Opinions 2006-4 and 2004-1, which are discussed, respectively, above and below) are consistent with the Board's advice in 2007-5, but none of the six are even cited.  The authority contrary to Opinion 2007-5 is substantial, and nothing in the Task Force's comparison of the former Code rule (DR 2-101(F)(2)) with Rule 7.3(c) suggests that the drafters intended to make any change in the approach reflected in the opinions that follow – indeed, the Comparison expressly states that the "provisions of DR 2-101(F)(2) have been incorporated in division (c)." 

Thus, in Bd. of Comm'rs on Grievances & Discipline Op. 92-20, 1992 Ohio Griev. Discip. LEXIS 1 (Dec. 4, 1992), the Board considered whether the special restrictions on targeted direct mail should apply to a lawyer who wished to mail a personalized cover letter and accompanying newsletter to a wide group including local businesses.  Interpreting the Code provision placing restrictions on direct mail solicitations, the Board determined that the mere personalization of the letter did not trigger those restrictions.  Instead, the Board stressed the language of DR 2-101(F)(2), which, by its terms, applied only to the solicitation of persons "who may be in need of specific legal service by reason of a circumstance, condition or occurrence" known or which, upon reasonable inquiry, could be known to the lawyer.  Second, in Bd. of Comm'rs on Grievances & Discipline Op. 94-13, 1994 Ohio Griev. Disc. LEXIS 2 (Dec. 2, 1994), the Board opined that a lawyer must comply with DR 2-101(F)(2) "if the letters are targeted to 'persons or groups of persons who may be in need of specific legal service by reason of a circumstance, condition, or occurrence that is known or, upon reasonable inquiry, could be known to the soliciting lawyer or law firm.'"  Id. at *13-14.  Third, the Board stated in Bd. of Comm'rs on Grievances & Discipline Op. 2002-6, 2002 Ohio Griev. Discip. LEXIS 6 (June 14, 2006), that

[t]he restrictions of DR 2-101(F)(2) and DR 2-101(F)(4) are applicable to the question presented [because] [t]he attorney knows that the corporation is in need of specific legal services and the corporation is named as a defendant in a civil suit.

Id. at *11 (bracketed material added).  Fourth and finally, there is Bd. of Comm'rs on Grievances & Discipline Op. 2004-9, 2004 Ohio Griev. Discip. LEXIS 9 (Oct. 9, 2004), in which it is stated with respect to a lawyer's personalized letter to chiropractors asking for the opportunity to meet to provide information about the lawyer's legal services:

The rule restricting targeted direct mail solicitation, DR 2-101(F)(2) does not apply, because the letter is not directed to individuals in need of legal services.

Id. at *8.

Based on the foregoing, it is difficult to reach any conclusion other than that the Board has rewritten Rule 7.3(c).  Accord Eugene P. Whetzel, Change as a constant: Review of The Judicial Code and other clarifications, Ohio Law. Sept./Oct. 2007, at 28, 29 (Opinion 2007-5 "apparently expands the scope of Rule 7.3(c)").

Indeed, the Board's conclusion produces the incongruous result that Rule 7.3(c) applies to circumstances in which it is impossible for the soliciting lawyer to comply with it.  The Board says that the lawyer's knowledge of a "general need" for legal services in sending a personalized letter is sufficient to trigger the 7.3(c) requirements. But one of those requirements is that the lawyer must disclose "accurately and fully" how the lawyer or the firm became aware of "the specific legal need of the addressee."  Rule 7.3(c)(1) (emphasis added).  This of course will be impossible in those instances in which the lawyer or the firm is aware only of a "general," rather than a "specific," legal need of the recipient; nonetheless, says the Board, in all such instances, "the safeguards of Rule 7.3(c)(1) through (3) are applicable."  Id. at *8.  Like Joseph Heller, the Board has written a "Catch 22."

Email solicitation: The internet has opened up a new avenue of communication for lawyers, along with everyone else. Ohio Rule 7.3 addresses internet communication thoroughly, from "real-time electronic contact" in division (a) to "electronic communication" in divisions (b), (c), (d), and, by implication, in division (e). While we know of no Ohio court decisions under the former OHCPR dealing with the propriety of internet solicitation and other usage by lawyers, a few ethics opinions addressed the issue.

The most comprehensive is the most recent (and, with respect to "targeted" communications, we believe erroneous, for the reasons set forth below). Bd. of Comm'rs on Grievances & Discipline Op. 2004-1, 2004 Ohio Griev. Discip. LEXIS 1 (Feb. 13, 2004). In Opinion 2004-1, the questions posed were (a) whether it was proper for attorneys to advertise legal services by sending unsolicited emails to potential clients, and (b) whether lawyers could participate in lawyer-advertising services or lawyer-referral services that did so. The Board noted at the outset that there were no ethical rules under the OHCPR addressing unsolicited email advertising. In such a setting, the Board counseled that lawyers were not barred from such solicitation but discouraged them from doing so, either directly or through lawyer-advertising services or lawyer-referral services. If a lawyer did engage in such solicitation, the advertising rules (former OH DR 2-101 through 2-105) would apply.

The Board opined that the practice of sending unsolicited emails to prospective clients constituted "targeted direct mail," which was subject to the restrictions of former OH DR 2-101(F)(2), (F)(4), and (H)(1). According to the Board, OH DR 2-101(F)(2) applied "regardless of whether or not the e-mail recipient has a specific legal need known to the sender/attorney" (even though that requirement was expressly stated in the rule).  Id. at *1, 14-15.  There is no analysis or justification given for this conclusion; it is just stated without more.

The Board also stated that a lawyer participating in a lawyer-advertising service that sends unsolicited commercial emails should review the email material to determine compliance with existing advertising rules and applicable law. A lawyer participating in a lawyer-referral service should review whether the referral service is in compliance with former OH DR 2-103(C); the Board further suggested that the referral service emails should conform to the OHCPR lawyer-advertising rules.

Opinion 2004-1 reviewed federal and state legislation regulating unsolicited commercial email. See id. at *5, discussing the "Can-Spam Act of 2003," 15 USCA §§ 7701-7713 (Supp. 2004), and ORC 2307.64 (regulating electronic mail advertisements). The Board further noted the preemption provision in the Can-Spam Act, 15 USCA § 7707(b), which supersedes state regulation of commercial email except to the extent that the state statute, regulation, or rule prohibits falsity or deception. (Both the Can-Spam Act and Opinion 2004-1 are discussed in Henry R. Chalmers, New Law Restricts E-Mail Advertisements, Litig. News, July 2004, at 6.)

In Opinion 2004-1, the Board also listed its prior opinions dealing with email issues, in which it had opined that:

  • a lawyer could communicate with established clients via email, Bd. of Comm'rs on Grievance & Discipline Op. 99-2, 1999 Ohio Griev. Discip. LEXIS 2 (Apr. 9, 1999);

  • a lawyer could receive and respond to email legal questions from visitors to the firm's web site, Bd. of Comm'rs on Grievances & Discipline Op. 99-9, 1999 Ohio Griev. Discip. LEXIS 10 (Dec. 2, 1999);

  • a lawyer could communicate by email with other attorneys to express interest in serving as counsel in a matter, Bd. of Comm'rs on Grievances & Discipline Op. 2002-6, 2002 Ohio Griev. Discip. LEXIS 6 (June 14, 2002); and

  • email solicitation of prospective clients "known to have a legal need" are subject to regulation under DR 2-101(F)(2)Id. [Actually, Opinion 2002-6 spoke in terms of knowledge of a "need for specific legal services," not just "legal need."  Id. at *10.]

The restrictions imposed by Opinion 2004-1 with respect to advertising legal services by sending unsolicited emails to "an individual or hundreds or thousands of prospective clients at once" seem dubious at best under the Rules. Unless there has been a "don't-call-or-write-or e-mail" instruction from the prospective client under division (b)(1), or unless the solicitation is harassing, coercive, etc. under division(b)(2) (nothing in Opinion 2004-1 indicates that either was the case), then the emails under consideration would appear to pass muster under Rule 7.3(b) and not be subject to the strictures of divisions (c), (d), or (e). (Nor were they, of course "real-time electronic contact" under Rule 7.3(a).) While the opinion refers to the communications as "targeted direct mail," the facts presented rather clearly indicate that the communications were not targeted, but, rather, general electronic advertisements.

The Board reasoned that this was "targeted direct mail" subject to former DR 2-101(F)(2), (F)(4), and (H)(1), because "[w]hen a person receives an e-mail addressed to his or her electronic mail address, the person is a direct target of the sender." Id. at *5. While that may be an acceptable use of the word "targeted" in a general sense, it ignores the distinction between "personalization" and "targeting" (see Yurich, 78 Ohio St.3d 315, 677 N.E.2d 1190 (1997), discussed above) and is just plain wrong in the context of this ethics issue and the relevant rules.

First of all, it proves too much -- under the Board's reasoning any written, recorded, or electronic communication directed to a particular individual at her residence or business address, to her telephone answering machine, or her email address would be "targeted" in the sense used by the Board; such an interpretation is inconsistent, not only with other Board opinions (including one cited by the Board, Opinion 2002-6) but with respected commentary as well. See Bd. of Comm'rs on Grievances & Discipline Op. 2002-6, 2002 Ohio Griev. Discip. LEXIS 6 (June 14, 2002) (former DR 2-101(F)(2) & (F)(4) applicable to email because sender knew corporate recipient was in need of legal services and was defendant in a civil action); see also Bd. of Comm’rs on Grievances & Discipline Op. 2004-9, 2004 Ohio Griev. Discip. 9 (Oct. 9, 2004) (DR 2-101(F)(2) restrictions did not apply to personalized letter to chiropractor “because the letter is not directed to individuals in need of legal services,” id. at *8); Bd. of Comm'rs on Grievance & Discipline Op. 94-13, 1994 Ohio Griev. Discip. LEXIS 2 (Dec. 2, 1994) (opining that the former DR 2-101(F)(2) places restrictions on "targeted direct mailings" to those known to be in need of legal services; mailing for legal seminar addressing known legal problems of invitees would be subject to (F)(2) restrictions; if that factor not present, communication "would not be considered a targeted direct mail solicitation subject to the restrictions within DR 2-101(F)(2)." Id. at *13); Bd. of Comm'rs on Grievances & Discipline Op. 92-20, 1992 Ohio Griev. Discip. LEXIS 1 (Dec. 4, 1992) (language of (F)(2) limits its scope to "direct mail addressed to targeted persons or groups of persons" -- those in need of specific legal services arising from specific circumstances known to lawyer; firm newsletter with personalized cover letter to "an untargeted broad group of people" having general interest in information not subject to (F)(2) restrictions, id. at *4). Accord 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 57.9, at 57-18 (3d ed. Supp. 2008) (MR 7.3(c) “labeling requirement does not apply to advertising material sent to people not known to need legal services in a particular matter." (emphasis in original)); see ABA, Annotated Model Rules of Professional Conduct 538 (6th ed. 2007) (commentary) (MR 7.3(c) requires "Advertising" label for "targeted communications"; comparing Ohio Board Opinion 92-20 with Opinion 2004-01).

Second, as the Board opinions cited in the preceding paragraph make clear, the relevant disciplinary rule, OH DR 2-101(F)(2), was implicated only if there was actual or constructive knowledge by the soliciting lawyer of a "circumstance, condition, or occurrence by reason of [which the recipient] "may be in need of specific legal service." In Opinion 2004-1, the Board acknowledged the existence of this requirement, see id.  at *10, but opined, without explanation, directly to the contrary.

The bottom line under the Rules is that the restrictions imposed by Ohio Rule 7.3(c) should not be imposed on the sort of indiscriminate email message -- not sent to those known to be in need of legal services in a particular matter, which is what "targeted" means in this context -- that was the subject of Opinion 2004-1. On the point under discussion, the communication at issue in Opinion 2004-1 should, under the Rules, properly be addressed by Rule 7.3(b), not Rule 7.3(c), and should be permitted, so long as neither subdivision (b)(1) (client makes known to lawyer desire not to be solicited) nor (b)(2) (coercive solicitation) is implicated.  As previously discussed, however, this is not the way the Board reads Rule 7.3(c) in Opinion 2007-5.

7.3:500 Solicitation by Prepaid and Group Legal Services Plans

  • Primary Ohio References: Ohio Rule 7.3(f)
  • Background References: ABA Model Rule 7.3(d)
  • Commentary: ABA/BNA § 81:2503; Wolfram § 16.5.5

Under Ohio Rule 7.3(f),

a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

This activity is expressly excluded from the prohibitions of division (a). Thus, the solicitation activity approved by division (f) permits such an organization to avail itself of direct interpersonal encounters but only as to "persons not known to need legal services in a particular matter covered by the plan" and, interestingly, only by use of "in-person or telephone contact," not real-time electronic contact. Because of the former limitation, the strictures of division (c) do not apply. But, as noted in the last sentence of Rule 7.3 cmt. [8], the participating lawyer "must reasonably ensure that the plan sponsors are in compliance" with Rule 7.3(b), as well as Rules 7.1 and 7.2.

Comment [8] goes on to give further details. Not only must the organization not be owned or directed by the participating lawyer, as stated in the Rule, but the personal contact made to solicit members for the group or prepaid legal service plan cannot be "undertaken by any lawyer who would be a provider of legal services through the plan." Rule 7.3 cmt. [8]. With respect to ownership or direction, the comment states that

division (f) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise.

Id. Communication permitted by such organizations "is to be designed to inform potential plan members generally of another means of affordable legal services," id., and, as stated in the Rule, cannot be directed to those known to be in need of legal services in a particular matter.

Comment [6] further provides that Rule 7.3

is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries, or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement that the lawyer or lawyer's firm is willing to offer.

Rule 7.3 cmt. [6]. This type of communication, not directed to a prospective client, is addressed to representatives acting in a fiduciary capacity and is "functionally similar to and serve[s] the same purpose as advertising permitted under Rule 7.2." Id.

After noting that solicitation by legal-service programs sponsored by organizations is constitutionally protected (see United Transp. Union v. Mich. State Bar, 401 U.S. 576 (1971)), ABA, Annotated Model Rules of Professional Conduct 554 (5th ed. 2003) (commentary), goes on to say that section (d) (division (f) in Ohio) goes beyond associational-rights protection; it "authorizes prepaid and group legal services plans generally," so long as they are not owned or directed by lawyers providing the services and do not engage in solicitations targeted to persons known to be in need of legal services in a particular matter covered by the plan. In the words of Hazard and Hodes, "targeted solicitations are not allowed"; this means

that prepaid legal services plans -- even those operated for profit -- may aggressively market general "memberships" in the nature of insurance policies against future needs for legal services, but may not use the same in-person solicitation techniques to sign up new members in order to ensure that they [sic their] existing (known) legal needs are met.

2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 57.10, at 57-21 (3d ed. Supp. 2008) (emphasis in original; bracketed material added).

See Gov Bar R XVI 5 (setting forth requirements for legal-service plans), discussed in section 7.2:400 supra.