OPINION Issued April 7, 2017 (Update and Withdrawal of Former Opinion ) Solicitation of Professional Employment Via
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1 OPINION Issued April 7, 2017 (Update and Withdrawal of Former Opinion ) Solicitation of Professional Employment Via SYLLABUS: A lawyer may use to solicit professional employment, subject to the restrictions contained in the Rules of Professional Conduct concerning lawyer communications and solicitation. A lawyer may allow a lawyer referral service or a lawyer advertising service to transmit a solicitation on the lawyer s behalf. However, the lawyer remains responsible for the content of the and must ensure that the communication complies with the Rules of Professional Conduct. This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct.
2 65 SOUTH FRONT STREET, 5 TH FLOOR, COLUMBUS, OH Telephone: Fax: DAVID L. DINGWELL CHAIR SANFORD E. WATSON VICE- CHAIR RICHARD A. DOVE DIRECTOR D. ALLAN ASBURY SENIOR COUNSEL HEIDI WAGNER DORN COUNSEL OPINION Issued April 7, 2017 (Update and Withdrawal of Former Opinion ) Solicitation of Professional Employment Via SYLLABUS: A lawyer may use to solicit professional employment, subject to the restrictions contained in the Rules of Professional Conduct concerning lawyer communications and solicitation. A lawyer may allow a lawyer referral service or a lawyer advertising service to transmit a solicitation on the lawyer s behalf. However, the lawyer remains responsible for the content of the and must ensure that the communication complies with the Rules of Professional Conduct. QUESTIONS PRESENTED: 1) Whether it is proper for a lawyer to advertise legal services by sending unsolicited s to persons. 2) Whether a lawyer can participate in a lawyer referral service or lawyer advertising service that sends unsolicited s to persons. 1 APPLICABLE RULES: Prof.Cond.R. 5.3, 7.1, 7.2, and This opinion analyzes the substantially same question addressed by former Adv. Op , but does so under the Ohio Rules of Professional Conduct.
3 Op OPINION: Question One Prof.Cond.R. 7.3 governs a lawyer s direct contact with persons when soliciting professional employment. A solicitation is a type of advertising communication initiated by a lawyer that is directed to a specific person and includes an offer to provide legal services. Prof.Cond.R. 7.3, cmt. [1]. Prof.Cond.R. 7.3 prohibits in-person, live telephone, or real-time electronic solicitation of clients unless the person contacted is a lawyer, family, close personal friend, or has a prior professional relationship with the lawyer. One rationale for the rule is to prevent undue influence, intimidation, and overreaching by the soliciting lawyer. Prof.Cond.R. 7.3, cmt. [2]. Less direct forms of solicitation including written, recorded, or electronic communications are permissible under the Rules of Professional Conduct. An is a form of a written communication for purposes of Prof.Cond.R. 7.2 as the term written is defined as a tangible or electronic record of a communication or representation, including * * * electronic communications. Prof.Cond.R. 1.0(p). Terminology. Solicitation by is expressly permitted because it does not involve the type of realtime contact prohibited by Prof.Cond.R. 7.3(b) (a communication can be mailed or transmitted by or other electronic means that do not involve real-time contact * * *.) Prof.Cond.R. 7.3(b), cmt. [3]. While an solicitation is permissible under the Rules of Professional Conduct, additional ethical and legal concerns must be addressed when a lawyer chooses to utilize the method to advertise the availability of legal services. Most importantly, all communications concerning a lawyer or a lawyer s services, regardless of form, must comply with the requirements of Prof.Cond.R. 7.1: 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
4 Op omits a fact necessary to make the statement considered as a whole not materially misleading. Because solicitation is treated similarly to other forms of written communication permitted by Prof.Cond.R , the content of the soliciting professional employment must not be false, misleading, or nonverifiable. Comments [3], [4], and [5] to Prof.Cond.R. 7.1 provide examples of the types of communications that may conflict with the rule. In addition, Prof.Cond.R. 7.3(b) provides that solicitation in any form is not permitted if 1) the person being solicited has made it known they do not desire to be contacted; or 2) the solicitation involves coercion, duress, or harassment, or the lawyer knows or reasonably should know that the person is a minor, incompetent, or cannot exercise reasonable judgment in employing a lawyer. If after sending an the lawyer receives no response, further communication with the same recipient may implicate Prof.Cond.R. 7.3(b). Prof.Cond.R. 7.3(b), cmt. [6]. Lastly, Prof.Cond.R. 7.3(c) requires [e]very written, recorded or electronic communication from a lawyer soliciting professional employment from anyone whom the lawyer reasonably believes to be in need of legal services in a particular matter to comply with three conditions: 1) disclose accurately and fully the manner in which the lawyer became aware of the identity and specific legal need of the addressee; 2) refrain from expressing any predetermined evaluation of the merits of the addressee s case; and 3) conspicuously include the recital ADVERTISING MATERIAL or ADVERTISEMENT ONLY at the beginning and ending of any electronic communication. The inclusion of the ADVERTISING MATERIAL or ADVERTISEMENT ONLY recital in the subject line of the satisfies the requirement to include the recital at the beginning of the communication. Additional restrictions concerning the verification that a defendant in a civil action has been served, and the inclusion of the Understanding Your Rights statement thirty days after an accident or disaster that gives rise to a claim must also be observed. Prof.Cond.R. 7.3(d), (e). The Understanding Your Rights statement must be included in the body of the solicitation, and not referenced by an attachment or hyperlink. See Adv. Op
5 Op Additional legal considerations for solicitation Under Prof.Cond.R. 7.3, communications may be mailed or transmitted by or other electronic means that do not violate other laws governing solicitations. Prof.Cond.R. 7.3, cmt. [3]. In 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing Act ( CAN-SPAM ) was enacted by the United States Congress to regulate the commercial use of . The law covers all commercial messages, which the law defines as any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service. Lawyers should be mindful that Ohio also regulates commercial under R.C Question Two A lawyer may permit a lawyer referral service or lawyer advertising service to transmit a solicitation on the lawyer s behalf. However, Prof.Cond.R. 5.3 holds the lawyer responsible for the conduct of persons employed by, retained by, or associated with the lawyer that violates Rules of Professional Conduct when the lawyer has ordered or otherwise ratified the conduct. Consequently, the lawyer using a service is responsible for ensuring the service s compliance with the Rules of Professional Conduct applicable to lawyer communications and solicitation. A lawyer participating in a service transmitting an solicitation on the lawyer s behalf should review the content of the to ensure its compatibility with the lawyer s professional obligations. CONCLUSION: An is a permissible form of advertisement for lawyers when used to solicit professional employment. However, when using as a solicitation method, a lawyer must comply with restrictions concerning the communication of a lawyer s services and solicitation contained in Prof.Cond.R Solicitation by is permissible if the method otherwise complies with other laws concerning the use of for commercial purposes. Lawyers participating in lawyer referral services or advertising services that use as a solicitation method, must insure that the communications conform to the Rules of Professional Conduct.
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