Could a legal aid lawyer who charged no fee solicit indigent people known to need representation, by direct mail or in person, after an eviction case was filed against them?
Ohio BPC Opinion 88-003: Direct-Mail Solicitation by a Legal Aid Lawyer
Short answer: The Board concluded that a legal aid lawyer who received no fee could ethically solicit indigent clients known to need specific legal services by direct mail only, provided the communication was not false, fraudulent, misleading, or deceptive, but that soliciting such a person in person violated former DR 2-103(A).
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The Board's status list flags this opinion as Withdrawn by Advisory Opinion 2023-02 on February 3, 2023. It was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007, and the status list notes subsequent amendments to DR 2-101 effective in 1993 and 2000. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 7.3 on solicitation) before relying on any specific rule mentioned here.
Plain-English summary
A legal aid lawyer asked whether he could solicit defendants for representation in eviction actions after the eviction had been filed, by sending a letter offering representation or soliciting them in person. The lawyer would represent only legal-aid-eligible clients and charge no fee.
The Board read former DR 2-101(B) to allow a lawyer to distribute information about legal services through the mail, subject to former DR 2-101(A)'s bar on false, fraudulent, misleading, or deceptive communications. It concluded that direct-mail solicitation by a legal aid lawyer of people with an identified present need for legal services was permitted, anchoring the result in the profession's recognized duty to make legal services available to those who cannot pay (former EC 1-1, EC 2-1, EC 8-3) and in the 1935 ABA Committee opinion that offering free legal services to those unable to pay is not unethical. The Board added that such a lawyer must scrupulously avoid misleading content and must not exert undue influence over a person known to need specific legal services, because such a person is potentially susceptible to overreaching. As to in-person solicitation, the Board concluded it would violate former DR 2-103(A), which barred recommending one's own employment to a non-lawyer who had not sought the lawyer's advice, citing Ohralik v. Ohio State Bar Assn. and Zauderer v. Office of Disciplinary Counsel. The Board limited the opinion to the situation where the legal aid lawyer receives no fee or remuneration from the client.
Common questions
Q: Could a legal aid lawyer send a solicitation letter to a person facing eviction?
A: Yes. The Board concluded that a no-fee legal aid lawyer could solicit indigent clients known to need specific legal services through direct mail, so long as the communication was not false, fraudulent, misleading, or deceptive.
Q: Could the lawyer solicit the same person in person?
A: No. The Board concluded that in-person solicitation violated former DR 2-103(A), citing Ohralik and Zauderer.
Q: Did it matter that the lawyer charged no fee?
A: Yes. The Board expressly limited the opinion to the situation where the legal aid lawyer receives no fee or remuneration from the client.
Background and rules framework
The opinion applies former DR 2-101(A) and (B) (communications and advertising) and former DR 2-103(A) (recommending one's own employment) of the Ohio Code of Professional Responsibility, read against the Ethical Considerations on access to legal services (EC 1-1, EC 2-1, EC 8-3). The current parallel on solicitation is Ohio Prof. Cond. R. 7.3 and Model Rule 7.3.
Citations and references
Rules of Professional Conduct:
- Former DR 2-101(A) and (B), Ohio Code of Professional Responsibility
- Former DR 2-103(A), Ohio Code of Professional Responsibility
- Former EC 1-1, EC 2-1, EC 8-3, Ohio Code of Professional Responsibility
Cases:
- Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), in-person solicitation
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), lawyer advertising
Other opinions cited:
- ABA Committee on Professional Ethics Formal Opinion No. 148 (1935): offering free legal services to those unable to pay is not unethical
- Maryland State Bar Assn. Committee on Ethics, Op. No. 85-83: adherence to advertising rules
See also
- Ohio BPC Opinion 1988-001: Law Firm Newsletters to Established Clients
- Ohio BPC Opinion 1987-007: Legal Seminars, Advertising, and Conduct
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-003.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 88-3
Issued: April 25, 1988
Withdrawn by Adv. Op. 2023-02
[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.]
SYLLABUS: Providing the communication does not contain a false, fraudulent, misleading, or deceptive statement or claim, a legal aid lawyer may ethically solicit indigent clients known to need legal representation through direct mail solicitation only. This opinion is limited to situations where the attorney receives no fee or remuneration from his or her client.
OPINION: We have before us your request for an informal advisory opinion regarding the propriety of a legal aid lawyer soliciting defendants for representation on eviction actions after an eviction has been filed. In your request you indicate that you intend to send defendants a letter offering representation or to solicit them personally. Your request also states that you would only represent legal aid eligible clients and that there would be no fee involved.
In regard to publicity and solicitation DR 2-101(B) states:
[i]n order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-102 through DR 2-105, information in print media, in written or printed material distributed to consumers trough the mail or otherwise; or over radio or television. The information disclosed by the lawyer in such publication or broadcast shall comply with DR 2-101(A). Code of Professional Responsibility DR 2-101(B).
This rule, as recently amended, allows attorneys to advertise their services subject to the following limitations: "a lawyer shall not use, or participate in the use of any form of communication containing a false, fraudulent, misleading, or deceptive statement or claim." Code of Professional Responsibility DR 2-101(A).
Thus, direct mail solicitation by a legal aid lawyer is permitted under the Code provided the communication does not contain a false, fraudulent, misleading, or deceptive statement or claim. The question then becomes, do these rules allow a legal aid lawyer to solicit clients, through direct mailings, who have an identified present need for legal services? We believe they do.
"A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence." Code of Professional Responsibility EC 1-1. Furthermore, "the need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to recognize their legal problems, to facilitate the process of intelligent selection of lawyers and to assist in making legal services fully available." Code of Professional Responsibility EC 2-1.
The direct mail solicitation you contemplate as a legal aid lawyer seems designed to: assist indigents in recognizing their legal problems, making legal services available, and facilitating the process of selection-of a lawyer. In 1935, when solicitation of business by attorneys was strictly prohibited, the ABA Committee on Professional Ethics issued an opinion that stated, "offering publicly to render legal services without charge to citizens who are unable to pay for them is not unethical." The Committee pointed out that, the Canon which proscribed solicitation of business had to do with "the effort to obtain remunerative business -- the endeavor to increase the lawyer's practice with the end in view of enlarging his income" and was "never aimed at a situation in which a group of lawyers announce that they are willing to devote some of their time and energy to the interest of indigent citizens whose constitutional rights are believed to be infringed." ABA Committee on Professional Ethics Formal Opinion No. 148 (1935). Given the fact that advertising by lawyers is no longer proscribed reinforces this ABA opinion.
"Those persons who are unable to pay for legal services should be provided needed services." Code of Professional Responsibility EC 8-3. Sending out direct mail advertising to indigent persons in need of specific legal services will assist the legal profession in carrying out its duty to render services to those who cannot afford to pay for such services.
A legal aid lawyer using direct mail advertising must scrupulously adhere to the relevant Code provisions regarding misleading, deceptive, false and fraudulent advertising. See, e.g., Maryland State Bar Assn. Committee on Ethics, Op. No. 85-83. We also assert that the legal aid lawyer who utilizes direct mail advertising must avoid asserting undue influence over the potential client especially when such advertising is directed to a person known to need specific legal services. Such a person is potentially susceptible to overreaching.
In regard to you personally soliciting a defendant, it is our opinion that such activity would be in violation of DR 2-103 which states: "a lawyer shall not recommend employment, ... of himself, ... to a non-lawyer who has not sought his advice regarding employment of a lawyer, except as provided in DR 2-101." Code of Professional Responsibility DR 2-103(A). In-person solicitation is not a permitted form of advertising under DR 2-101(B). See also, Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).
In conclusion, it is our opinion and you are so advised that, a legal aid lawyer may ethically solicit indigent clients known to need specific legal services through the use of direct mail advertising only. See, Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455 (1978). This advisory opinion only addresses targeted direct mail solicitation by the legal aid attorney who receives no fee or remuneration from his or her client.
THIS IS AN INFORMAL, NON-BINDING ADVISORY OPINION, BASED UPON THE FACTS AS PRESENTED AND LIMITED TO THE SITUATION WHERE A LEGAL AID LAWYER SEEKS TO REPRESENT AN INDIGENT PERSON ELIGIBLE FOR LEGAL AID, AND RECEIVES NO FEE OR REMUNERATION FROM THE CLIENT.