Under the former Ohio Code of Professional Responsibility, could a lawyer send a written announcement to other lawyers offering to act as an associate or consultant in a particular branch of the law, and could the announcement promise a follow-up call?
Ohio BPC Opinion 87-004: Announcement of Availability to Act as Associate or Consultant to Other Lawyers
Short answer: The Board concluded that under former DR 2-105(A)(3) of the Ohio Code of Professional Responsibility a lawyer was permitted to send a written announcement to other lawyers offering to act as an associate or consultant in a particular branch of the law, provided the announcement was dignified, truthful, and accurate; the Board advised against including a promised follow-up call or making any follow-up unless the recipient first responded positively.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Board's status list flags this opinion as a CPR Opinion that provides advice under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. The status list also notes subsequent rule amendments to DR 2-107 effective August 1, 1990. Treat this page as historical context, not current guidance. Do not rely on the DR 2-103(B), DR 2-105(A)(3), DR 2-107, EC 2-13, or EC 2-21 references as current Ohio rules. Verify against current rules (Ohio Prof. Cond. R. 7.1 through 7.5 on communications, and R. 1.5(e) on fee divisions) before acting.
Plain-English summary
The Board addressed a proposed letter to other lawyers from a Cleveland attorney announcing availability "to act as an associate of your office in the representation of clients with Workers' Compensation Claims," noting the writer's downtown Cleveland location and that "[f]ull disclosure of division of attorney fees will be made to your client." The letter concluded that the writer would call recipients shortly to gauge interest.
On the announcement itself, the Board read DR 2-105(A)(3) as permitting a lawyer to announce availability to act as a consultant or associate to other lawyers, with the proviso that the announcement be dignified, true, and accurate. The Board flagged former EC 2-13's discouragement of announcing special competence or experience and former DR 2-103(B)'s prohibition on referral fees as related limits.
On fee division, the Board cited DR 2-107 as permitting division between attorneys provided the client, after full disclosure, consented to the arrangement, and EC 2-21 as requiring the division to be commensurate with services performed and responsibility assumed.
On the proposed follow-up call, the Board concluded that, although the former Code did not expressly address it, no follow-up communication should be made unless the recipient responded positively to the first written announcement, and that the announcement letter should not reference a follow-up. The Board cited Maryland State Bar Association Committee on Ethics Opinion 84-104 (1984) for the same posture.
Common questions
Q: Did the Board treat a lawyer-to-lawyer announcement as a form of advertising or as a form of solicitation?
A: The Board treated the lawyer-to-lawyer announcement as a permitted communication under former DR 2-105(A)(3), conditioned on the content being dignified, true, and accurate, and on related limits in former EC 2-13 (no announcement of special competence or experience) and DR 2-103(B) (no referral fees).
Q: What did the Board say about a follow-up phone call?
A: The Board advised against any follow-up communication on the part of the announcing lawyer, and against any reference to a follow-up in the letter itself. It concluded that no follow-up should be made unless the recipient first responded positively to the written announcement.
Q: What were the conditions for dividing fees with the receiving lawyer?
A: Under DR 2-107, the Board stated that fee division between attorneys required the client's consent after full disclosure of the arrangement, and that under EC 2-21 the division should be commensurate with the services performed and responsibility assumed by each lawyer.
Background and rules framework
The opinion interpreted former DR 2-105(A)(3) (announcements to other lawyers), DR 2-107 (fee division), DR 2-103(B) (referral fees), EC 2-13, and EC 2-21 of the Ohio Code of Professional Responsibility. These provisions were superseded when the Ohio Rules of Professional Conduct took effect on February 1, 2007. The current Ohio framework on lawyer-to-lawyer communications and on fee division is now in Ohio Prof. Cond. R. 7.1 through 7.5 and R. 1.5(e), respectively, both of which differ from the former CPR provisions.
Citations and references
Rules of Professional Conduct:
- Former DR 2-103(B), Ohio Code of Professional Responsibility
- Former DR 2-105(A)(3), Ohio Code of Professional Responsibility
- Former DR 2-107, Ohio Code of Professional Responsibility
- Former EC 2-13 and EC 2-21, Ohio Code of Professional Responsibility
Other opinions cited:
- Committee on Ethics, Maryland State Bar Association, Opinion No. 84-104 (1984): no follow-up after written announcement
See also
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-004.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 87-004
October 16, 1987
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
[Not current-subsequent rule amendments to DR 2-107, eff. Aug. 1, 1990].
SYLLABUS: A lawyer may announce his or her availability to act as a consultant to, or associate of other lawyers, provided the announcement complies with the Code of Professional Responsibility.
OPINION: We have before us your request for our opinion on whether it is ethically proper for an attorney to send an announcement that he or she is available to act as an associate of other lawyers in a particular branch of the law. Your proposed letter of announcement states:
"Dear (Fellow Attorneys):
I am available to act as an associate of your office in the representation of clients with Workers' Compensation Claims.
Located in downtown Cleveland near the State Office Building, I can work on claims which may be unprofitable for you to handle yourself.
Full disclosure of division of attorney fees will be made to your client. I will be calling you shortly to see if you have any interest in referring these cases."
Under DR 2-105 (A) (3) of the Code of Professional Responsibility a lawyer is permitted to announce his availability to other lawyers to act as their consultant or as an associate for their law practice. Therefore, if your letter is dignified, true and accurate, then you will be in compliance with the Code. Bear in mind, however, that the Code discourages announcing any special competence or experience in EC 2-13, and referral fees are prohibited in DR 2-103(B).
In regard to the division of attorneys' fees, DR 2-107 allows an attorney to divide fees with another attorney if the client, after full disclosure, consents to the arrangement. In addition, any fee division between lawyers should be commensurate with the services performed and responsibility assumed by each. EC 2-21.
Finally, the last paragraph of your announcement letter indicates a follow-up call will be made by you shortly after receipt of the letter. Although the Code does not address this specific issue, we advise against any follow-up communication on your part or any reference to it in the announcement letter. See e.g., Committee on Ethics, Maryland State Bar Association, Opinion No. 84-104 (1984). It is our belief that no follow-up communication should be made unless the recipient responds positively to the first, written announcement.
In conclusion, it is our opinion, and you are so advised, that a lawyer may send a letter to other lawyers announcing his or her availability to act as a consultant or an associate in a particular branch of the law provided such an announcement adheres to the restrictions set forth above.
This is an informal, non-binding advisory opinion, based upon the facts as presented and limited to questions arising under the Code of Professional Responsibility. This Opinion does not constitute the approval or endorsement of the text of the proposed letter contained herein.
JAMES W. MASON, Esq.
Secretary
Board of Commissioners
On Grievances and Discipline