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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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
IV. transactions with persons other than clients
Ohio Rule 4.3 is identical to the Model Rule.
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 4.3: DR 7-104(A)(2).
- Primary Ohio References: Ohio Rule 4.3
- Background References: ABA Model Rule 4.3
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.75
- Commentary: ABA/BNA § 71:501; ALI-LGL § 103; Wolfram § 11.6.3
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 § 7.75 (1996).
Ohio Rule 4.3 applies in situations where a lawyer, acting on behalf of a client, deals with an unrepresented person. See also ABA, Annotated Model Rules of Professional Conduct 408-09 (6th ed. 2007) (commentary) (discussing the interplay between MR 4.2 and MR 4.3 with respect to unrepresented employees of represented corporations or other entities). Comment  similarly refers the reader to Rule 1.13(d) regarding misundertandings that can arise when a lawyer for an organization deals with an unrepresented constituent. Ohio Rule 4.3 cmt. . See section 1.13:400. Contacts with unrepresented third parties outside the context of client representation are regulated, where applicable, by the advertising rules Ohio Rule 7.1 et seq., and the general restrictions on lawyer conduct contained in Ohio Rule 8.4.
Ohio Rule 4.3 imposes two restrictions. First, the Rule prohibits a lawyer, in dealing on behalf of a client with a person unrepresented by counsel, from stating or implying that the lawyer is disinterested. If the lawyer knows or should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must make reasonable efforts to correct that misunderstanding. Second, under the Rule, the lawyer shall not give any legal advice to such a person, other than to obtain counsel, if the lawyer knows or should know that the person's interests are or have a reasonable possibility of being in conflict with the interests of the lawyer's client. The first limitation was not addressed in the former OHCPR; the second was treated in OH DR 7-104(A)(2).
Misunderstanding the lawyer's role: One concern underlying the Rule is a fear that at times unrepresented parties may not understand the role of the lawyer and may believe the lawyer to be disinterested rather than a partisan acting on behalf of a client. The Rule places two duties on the lawyer to help avoid this misunderstanding. First, the lawyer can do nothing to foster such a misperception; the lawyer "shall not state or imply that the lawyer is disinterested." Ohio Rule 4.3. Even without the lawyer's encouragement, an unrepresented party may still misunderstand the lawyer's role. If the lawyer "knows or reasonably should know" that such a misunderstanding has occurred, the lawyer must make "reasonable efforts to correct the misunderstanding." Id. To avoid this situation, Comment  advises the "a lawyer will typically need to identify the lawyer's client, and where necessary, explain that the client has interests opposed to those of the unrepresented person." Ohio Rule 4.3 cmt. .
The Board of Commissioners confronted this issue in a 1996 opinion concerning whether counsel retained by a tortfeasor's insurer could prepare an application for guardianship appointment and an application for approval of settlement and appear before the court with respect to these matters to secure the settlement of an unrepresented minor's injury claim. Bd. of Comm'rs on Grievance & Discipline Op. 96-2 (Feb. 2, 1996). In the Board's view, one of the potential pitfalls was a possibility that the unrepresented minor, or the minor's unrepresented parents, might believe that the lawyer was to some extent representing their interests in the matter.
In response, the Board stated that the lawyer could avoid concern through a two-pronged disclosure--disclosing the identity of the attorney's client to the unrepresented party and clearly stating that the attorney does not represent the unrepresented party. As an added precaution, the Board advised that, with respect to the documents, the lawyer should make clear to the unrepresented parties that the documents were prepared at the insurer-client's request, and that the unrepresented parties can secure their own counsel to review them. With respect to the court appearance, counsel should make appropriate disclosure to the court to assure that the court is not misled as to the role of counsel.
Giving advice where interests do or may conflict: In applying Ohio Rule 4.3, it is important to recognize that the Rule does not prohibit communication by the lawyer to an unrepresented third party. It only prohibits giving that person "legal advice" when the lawyer knows or reasonably should know that such a person's interests are or have "a reasonable possibility" of being in conflict with the client's interests. Determining which types of communication constitute "legal advice" and when the reasonable-possibility-of-conflict standard has been met can be difficult.
The phrase "legal advice" is a limited one; not every utterance from an attorney constitutes legal advice. But its exact boundaries are uncertain. Comment  addresses this issue by identifying certain types of conduct that might be considered giving legal advice, but are not. Thus, the Rule
does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of the document or the lawyer's view of the underlying legal obligations.
A lawyer is prohibited from providing legal advice only when the lawyer "knows or reasonably should know" that the interests of the client and unrepresented person "are or have a reasonable possibility of being in conflict," for it is in this situation that the chance of lawyer overreaching and corresponding harm to the unrepresented person's interests is the greatest. Ohio Rule 4.3 & cmt. . The "reasonable possibility" standard is, by necessity, a fluid one, turning on the circumstances of each case, which may include "the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur." Id.
Guidance in applying this legal-advice aspect can be found in ethics opinions interpreting the analogous OHCPR provision, OH DR 7-104(A)(2).
A prosecuting attorney, for example, often deals with numerous individuals in the context of a case. There is usually no conflict between their interests and the state's. If a conflict becomes apparent, the prosecutor still will need to communicate with these individuals, but must be careful that the communication does not slip into the provision of advice. It is often necessary, however, for a prosecutor to give information about the law and its consequences to secure an individual's cooperation in the matter. Would this be providing legal advice and, therefore, contrary to the Rule? Under the former OHCPR and its similar provisions, the Ohio State Bar Association suggested that it was. In a 1981 opinion, the OSBA found it improper for a prosecuting attorney to tell a welfare recipient that "to knowingly make false statements to him could be welfare fraud," where her continued receipt of welfare assistance was dependent on her cooperation in a state-initiated paternity and child support action that she did not want to bring. Ohio State Ass'n Informal Op. 81-8, at 2 (Sept. 4, 1981). The provision of this information was treated as the giving of advice.
In contrast, the Cincinnati Bar Association gave an opinion that an attorney may comply with ORC 2307.61(A)(2)(a), which provides that certain types of recovery are available in a civil collections matter only if a demand letter is sent to the debtor, which letter includes "an overview of the damages available to the plaintiff." Cincinnati Bar Ass'n Op. 93-94-02, at 1 (n.d.). As the Cincinnati Bar Association saw it, the letter involved making a demand, not giving legal advice.
The Board of Commissioners dealt with the legal-advice issue in Bd. of Comm'rs on Grievances & Discipline Op. 96-2 (Feb. 2, 1996). Opinion 96-2 involved the settlement of a tort claim asserted by a minor claimant. Neither the minor nor his parents were represented during settlement negotiations. The lawyer retained by the tortfeasor's insurer sought advice as to whether he could prepare the application for appointment of guardian and for approval of the settlement, and appear before the court for final approval of the settlement. In responding that this would not be improper, provided certain disclosures were made to the minor and parents and to the court, the Board opined that
the preparation of the documents for the court to appoint a guardian and to approve the guardian's settlement of a minor's claim does not constitute the giving of legal advice to an unrepresented party. The documents facilitate settlement and are required by law. The documents record the agreement arrived at from the settlement negotiations. The documents are prepared at the request of the attorney's client and are not undertaken as a representation of the minor.
Op. 96-2, at *3. On the facts and assumptions stated, the advice given by the Board in Opinion 96-2 is consistent with the standards set forth in Ohio Rule 4.3 and its comments, particularly Comment .
Decisions under former OH DR 7-104(A)(2) on the possible-conflict issue include Cuyahoga Bar Ass'n v. Vitullo, 86 Ohio St.3d 549, 715 N.E.2d 1136 (1999) (rule violated by advising couple prior to representation with respect to lawsuit on behalf of their son, despite potential that son's employer, one of lawyer's existing clients, could be named a defendant). Accord Columbus Bar Ass'n v. Deffet, 98 Ohio St.3d 384, 2003 Ohio 1090, 785 N.E.2d 746 (rule violated by meeting with client and her estranged husband to have them sign quitclaim deed transferring marital residence to client; respondent did not ask husband whether he was represented, nor did he suggest that husband consult independent counsel concerning the transaction). Compare Yosemite Inv., Inc. v. Floyd Bell, Inc., 943 F. Supp. 882, 885 (S.D. Ohio 1996) (contact with unrepresented nonclient did not violate OH DR 7-104(A)(2) in "absence of any showing whatsoever" that nonclient's interests are adverse to those of lawyer's clients). Where the interests are or may be adverse, the concern is that the lawyer may take unfair advantage of the third party by providing advice that serves the client's interests alone, but on which the third party unwittingly will rely. In a 1994 Supreme Court case applying the former OH DR 7-104(A)(2) prohibition, a lawyer was found to have violated the rule when he prepared and submitted various legal documents on behalf of the mother and child in a paternity action, including a consent judgment entry dismissing the parentage action with prejudice, while representing the alleged father. Office of Disciplinary Counsel v. Rich, 69 Ohio St.3d 470, 633 N.E.2d 1114 (1994).