Changes to the Ohio Rules of Professional Conduct: Part 3
June 15, 2015
The 2015 amendments to the Ohio Rules of Professional Conduct also address the hiring of 3rd party service providers, non-Ohio lawyer advertising and Ohio lawyer advertising.
Comment 1 to Rule 5.3 [Responsibilities regarding NonLawyer Assistants] has been amended to increase the circle of responsibility to “nonlawyers outside the firm or agency who work on firm or agency matters.” This requires lawyers to give appropriate instruction to and supervision of all nonlawyer assistants who are employed on behalf of a client. This includes, but is not limited to, an investigator, a document management company, a third party printing company, and an internet-based service to store client information. Comments 2 and 3 to Rule 5.3 discuss the implications and practical effect of this change.
Comment 4 to Rule 5.5 [Unauthorized Practice of Law] has been amended to further explain the concept of maintaining an ‘office or other systematic and continuous presence’ in this jurisdiction for the practice of law. This standard can be met even if the lawyer is not physically present in Ohio. A non-Ohio lawyer who uses advertising specifically targeted to Ohio residents for solicitation purposes could be viewed as having a systematic and continuous presence in Ohio.
Comment 3 to Rule 7.1 [Communications concerning a Lawyer’s Services] expands the obligation to avoid creating an unjustified expectation for prospective clients to avoid creating an unjustified expectation that misleads the public. This is in line with the underlying purpose for the lawyer advertising rules.
Except as provided for in the Rules of Professional Conduct, lawyers are not allowed to give anything of value to another for recommending the lawyer’s services. Comment 5 to Rule 7.2 [Advertising and Recommendation of Professional Employment] explains that a communication is considered a recommendation for employment “if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.” And comment 5A advises that it is permissible for a lawyer to employ others to generate client leads, including internet-based client leads, provided the generator does not recommend the lawyer, the payment is consistent with Rules 1.5 and 5.4, and the generator’s communications comply with Rule 7.1. See comment 5A for further discussion of the use of lead generators.
Rule 7.3 [Direct Contact with Prospective Clients] has been amended to include a prohibition against client solicitations that the lawyer knows or reasonably should know are directed toward a minor or an incompetent or to someone the lawyer should know has physical, emotional, or mental issues that would make it unlikely the person could exercise reasonable judgment in employing a lawyer.
And finally the new amendments make an important clarification in the advertising rules. Comment 1 to Rule 7.3 makes it plain that a communication is a solicitation if it is an offer to provide legal services and is directed to a specific person. However, if advertising is directed to the general public, it typically does not constitute a solicitation. Examples of this form of advertising include a billboard or internet based advertisement, a commercial, made in response to a request for information or automatically generated in response to internet searches. These forms of advertisements do not have to comply with all the requirement found in Rule 7.3 (c) [disclosing how the lawyer became aware of the identity and specific legal need of the addressee; conspicuously including “ADVERTISING MATERIAL” in the communication].