Under the former Ohio Code of Professional Responsibility, could a lawyer or law firm advertise a legal seminar by direct mail to a targeted group and then conduct the seminar, and could the seminar be sponsored by the firm itself without bar association co-sponsorship?
Ohio BPC Opinion 87-007: Advertising and Conducting Legal Seminars by Direct Mail to Targeted Groups
Short answer: The Board concluded that under former DR 2-101 a lawyer or law firm could promote a legal seminar through printed direct-mail advertising to a targeted group (the Ohio Society of CPAs or persons likely to benefit from Chapter 13 representation) provided the advertisement was not false, fraudulent, misleading, or deceptive; and under former DR 2-103(A) and DR 2-104(A) the lawyer or firm could conduct the seminar provided the lawyer did not tout or recommend the lawyer or firm for employment to those attending. The Board departed from contrary Ohio State Bar Association Opinion 36 (1981) in light of Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).
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this opinion as a CPR Opinion that provides advice under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.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 2-101 (effective Jan. 1, 1993; Aug. 16, 1993; Jan. 1, 2000), DR 2-103 (effective July 1, 1996; Nov. 1, 1999), and DR 2-104 (effective Dec. 1, 1995). Treat this page as historical context, not current guidance. Do not rely on the DR 2-101(A), DR 2-103(A), DR 2-104(A), or EC 2-2 references as current Ohio rules. Verify against current rules (Ohio Prof. Cond. R. 7.1 through 7.3) before acting.
Plain-English summary
The Board addressed two requests: a law firm proposing to use the Ohio Society of CPAs' mailing list to promote a series of tax seminars, and another firm proposing to write to persons who dealt with parties likely to benefit from Chapter 13 bankruptcy representation. Both requests presented the same two questions: was the direct-mail advertising permissible, and was the firm-conducted seminar permissible without bar-association sponsorship.
On advertising, the Board read former DR 2-101(A) as permitting promotion of a legal seminar provided the advertisement did not contain false, fraudulent, misleading, or deceptive statements or claims. The Board cited Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), for the proposition that lawyers could not be disciplined for soliciting business through truthful, non-deceptive printed advertising containing legal-rights information. The Board concluded that Zauderer's analysis extended from newspaper advertising to direct-mail advertising because direct-mail did not put the same pressure on recipients as in-person solicitation and posed no greater risk of overreaching than newspaper advertising. The Board expressly declined to address advertising or solicitation by telephone, noting Joel Z. Hyatt, et al. v. J. Warren Bettis, Disciplinary Counsel, et al., 33 Ohio St. 3d 123 (1987), as a pending matter.
On the seminar itself, the Board read former DR 2-103(A) as prohibiting a lawyer from recommending himself, his partner, or associate for employment to a non-lawyer who had not sought the lawyer's advice; thus, a lawyer conducting a seminar could not recommend himself or members of his firm for employment to those attending. The Board read former DR 2-104(A) as restricting acceptance of employment resulting from unsolicited advice but concluded that an educational seminar on legal topics addressing the law as it applied to everyone was not "unsolicited advice to a layman that he should obtain counsel or take legal action" within the meaning of the rule. Therefore, a lawyer could ethically conduct a seminar without the sponsorship of an organization listed in DR 2-103(D)(1) through (4).
The Board expressly departed from Ohio State Bar Association Op. 36 (1981), which had read former EC 2-2 to require sponsorship of seminars by bar associations, schools, or other "responsible public or private organization[s]." The Board observed that EC 2-2 of Ohio's Code stated lawyers "acting under proper auspices should encourage and participate in educational and public relations programs," and that Ohio (unlike the ABA after Bates v. State Bar of Arizona, 433 U.S. 350 (1977)) had not amended that language; nonetheless, the Board concluded that the post-Zauderer amendments to Canon 2 disciplinary rules supported permitting firm-conducted seminars provided the seminar did not amount to in-person solicitation or recommendation of employment.
Common questions
Q: Under the Board's reading, could the firm purchase and use the CPA society's mailing list?
A: The opinion treats the proposed direct-mail advertising to that targeted group as permissible provided the advertisement was not false, fraudulent, misleading, or deceptive. The opinion does not separately analyze the legality of acquiring the mailing list.
Q: What conduct at the seminar itself did the Board prohibit?
A: The Board prohibited a lawyer or firm from touting or recommending himself or members of his firm for employment by those attending. The seminar could not be used as a forum for solicitation or client development. Educational discussion of legal topics that addressed the law as it applied to everyone was permissible.
Q: Did the Board treat Zauderer as controlling on direct-mail advertising?
A: The Board read Zauderer (which involved newspaper advertising) as extending to direct-mail advertising because direct-mail did not put pressure on the recipient for an immediate yes-or-no answer and did not pose a greater risk of overreaching or undue influence than newspaper advertising. The Board expressly distinguished in-person and telephone solicitation, which it did not address.
Q: Did the Board agree with the prior Ohio State Bar Association opinion requiring bar-association co-sponsorship?
A: No. The Board expressly departed from OSBA Op. 36 (1981) in light of Zauderer and the post-1986 amendments to the Canon 2 disciplinary rules.
Citations and references
Rules of Professional Conduct:
- Former DR 2-101(A), DR 2-103(A), and DR 2-104(A), Ohio Code of Professional Responsibility (1986)
- Former EC 2-2, Ohio Code of Professional Responsibility
Cases:
- Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985)
- Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
- Joel Z. Hyatt, et al. v. J. Warren Bettis, Disciplinary Counsel, et al., 33 Ohio St. 3d 123 (1987)
Other opinions cited:
- Ohio State Bar Association Legal Ethics and Professional Conduct Committee, Op. 36 (1981): contrary view, declined
- ABA Informal Op. 840 (1965): source of the contrary view
See also
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-007.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 87-007
December 18, 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 2-101, eff. Jan. 1, 1993, Aug. 16, 1993, Jan. 1, 2000; DR 2-103, eff. July 1, 1996, Nov. 1, 1999; DR 2-104, eff. Dec. 1, 1995.]
SYLLABUS: A lawyer or law firm may ethically advertise and conduct a legal seminar.
OPINION: We have before us two separate but similar requests for our opinion on whether a lawyer or law firm may ethically advertise a legal seminar by direct mail to a targeted group and then conduct such a seminar. In one instance a law firm would advertise and promote attendance at its series of tax seminars by the purchase and use of the mailing list of the Ohio Society of CPA'S. In the other instance, a law firm would advertise a seminar on Chapter 13 of the Bankruptcy Code by writing persons who deal with parties likely to benefit from a Chapter 13 proceeding.
The promotion, or advertising of a legal seminar is permissible, provided the advertisement does not contain false, fraudulent, misleading, or deceptive statements or claims. Code of Professional Responsibility, DR 2-101 (A) (1986). The United States Supreme Court recently held that "[a]n attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and non-deceptive information and advice regarding the legal rights of potential clients." Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985). The disciplinary rules under Canon 2 were revised and amended, effective March 1, 1986, to bring the Code within the law as enunciated in Zauderer.
Although the Zauderer case involved newspaper advertising, we believe the opinion's analysis applies to direct mail advertising to potential clients as well. Unlike in-person solicitation, direct mail advertising does not put pressure on the recipient for an immediate yes-or-no answer. Furthermore, the possibility of over-reaching or the exercise of undue influence is no greater in direct mail advertising than it is in newspaper advertising. Therefore, we believe that advertising a legal seminar through direct mailing to targeted groups is a protected form of advertising under Ohio's Code of Professional Responsibility and the Zauderer case. We purposefully are not addressing the issue of advertising or solicitation by telephone, for this issue was the subject of a recent case which was dismissed by the Ohio Supreme Court and may be the subject of future disciplinary rulings. Joel Z. Hyatt, et. al. vs. J. Warren Bettis, Disciplinary Counsel, et. al., 33 Ohio St. 3d 123 (1987).
Next we turn to our analysis of the disciplinary rules and how they affect a lawyer's or law firm's right to conduct a legal seminar. Under DR 2-103(A) of the Code, a lawyer is proscribed from recommending himself, his partner, or associate to a non-lawyer who has not sought his advice regarding the employment of a lawyer. Code of Professional Responsibility DR 2-103(A) (1986). Thus, a lawyer, while conducting a seminar, may not recommend himself or members of his firm for employment by those attending the seminar.
The portions of DR 2-104 which are relevant to this Opinion state:
(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.
(2) A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by any of the offices or organizations enumerated in DR 2-103(D)(1) through (5), to the extent and under the conditions prescribed therein. . . .
(4) Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice.
Code of Professional Responsibility DR 2-104 (A) (1986).
It is our opinion that a legal seminar, if properly conducted, does not amount to the giving of "unsolicited advice to a layman that he should obtain counsel or take legal action." Id. It is our belief that an educational seminar on legal topics which addresses the law as it applies to everyone is not individual, unsolicited advice within the meaning of DR 2-104. Therefore, as long as the lawyer conducting the seminar is not, giving unsolicited advice that someone should obtain counsel or take legal action, or touting or recommending himself or members of his firm for employment by those in attendance then, the lawyer may ethically conduct a legal seminar without the sponsorship or approval of an organization listed in DR 2-103 (D) (1)-(4).
In a 1981 opinion, the Ohio State Bar Association Legal Ethics and Professional Conduct Committee stated that a law firm could not sponsor a legal education seminar open to non-clients of the firm. OSBA Op. 36 (1981). In light of the recent changes in the disciplinary rules under Canon 2 of the Code, as well as the Zauderer case, we felt it necessary to deviate from the OSBA opinion.
The OSBA opinion asserts that Ohio's EC 2-2 requires sponsorship of seminars by "a bar association, school or other responsible public or private organization." OSBA Op. 36 (1981) citing ABA Inf. Op. 840 (1965). We do not agree. Ohio's EC 2-2 states:
[t]he legal profession should assist laymen to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers acting under proper auspices should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise . . . " (Emphasis added.)
Ohio, unlike the ABA, has not amended their version of EC 2-2 to exclude the language "acting under proper auspices." The ABA eliminated that language as a result of the landmark decision of Bates v. State Bar of Arizona, 433 U.S. 350 (1977) which afforded constitutional protection to lawyers who advertise.
Again, we are not of the opinion that the Code prohibits a lawyer or law firm from conducting its own legal educational seminar. This is especially true in light of the Zauderer decision. As long as the lawyer's or law firm's seminar is motivated by a desire to benefit the public and does not amount to in-person solicitation or recommendation of employment, we believe it is permissible even though a strict interpretation of the Code might indicate otherwise.
In conclusion, it is our opinion, and you are so advised, that a lawyer or law firm may ethically promote a legal seminar through printed advertising provided the advertisement does not contain false, fraudulent, misleading or deceptive statements or claims. Furthermore, a lawyer or law firm may ethically conduct a legal seminar provided the lawyer does not tout or recommend himself or his law firm for employment to those attending the seminar. In other words, the seminar should not be used as a forum for solicitation or client development.
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.
James W. Mason, Esq.
Secretary, Board of Commissioners
on Grievances and Discipline