When a landlord's lawyer refiles an eviction, must the lawyer notify the lawyer who had represented the tenant in an earlier eviction that was dismissed two months before?
Ohio BPC Opinion 88-011: Whether a Landlord's Lawyer Must Notify the Tenant's Prior Lawyer
Short answer: The Board concluded that a lawyer who refiles an eviction is not ethically obligated to contact the lawyer who had represented the tenant in a similar action dismissed two months earlier; the landlord's lawyer need only effect service of process on the tenant under the civil rules, and it is the tenant's own responsibility to notify the tenant's lawyer.
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
This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct and the current Rules of Civil Procedure before relying on any specific requirement mentioned here.
Plain-English summary
The Board considered a hypothetical: Attorney A represented a landlord and filed an eviction; the tenant consulted Attorney B, who answered; recognizing complaint deficiencies, Attorney A dismissed without prejudice. Two months later Attorney A refiled without notifying Attorney B, even knowing Attorney B had represented the tenant in the prior action. The tenant, assuming Attorney B had been notified, did not contact Attorney B and ended up defending herself and being evicted. The question was whether Attorney A's conduct was unethical.
The Board concluded that Attorney A had no ethical obligation to notify Attorney B about the eviction. The landlord's lawyer was required to effect service of process on the tenant under Rule 4 of the Rules of Civil Procedure, and it was the tenant's responsibility to notify her own lawyer if she wished. The Board observed that, as a professional courtesy, the landlord's lawyer might have tried to determine whether the tenant would again be represented by the earlier lawyer, but framed that as courtesy rather than obligation.
Common questions
Q: Did the landlord's lawyer have to tell the tenant's prior lawyer about the refiled eviction?
A: No. The Board concluded there was no ethical obligation to notify the prior lawyer; serving the tenant under Civ. R. 4 satisfied the lawyer's duty, and notifying her lawyer was the tenant's responsibility.
Q: Did the Board say anything about professional courtesy?
A: Yes. The Board observed that, as a professional courtesy, the landlord's lawyer might have tried to determine whether the tenant would be represented by the earlier lawyer, but it characterized that as courtesy, not obligation.
Background and rules framework
The opinion grounds the result in the procedural requirement that the landlord's lawyer effect service of process on the tenant under Ohio Civ. R. 4, rather than in any specific Disciplinary Rule, and distinguishes a professional courtesy from an ethical obligation.
Citations and references
Rules and statutes:
- Ohio Civ. R. 4 (service of process)
See also
- Ohio BPC Opinion 1988-001: Law Firm Newsletters to Established Clients
- Ohio BPC Opinion 1987-034: Announcement Cards to Non-Clients
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-011.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 88-011
Issued June 17, 1988
[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.]
SYLLABUS: An attorney representing a landlord in an eviction action is not ethically obligated to contact an attorney who might be representing the tenant, even if the landlord's attorney knew the tenant was represented by that attorney for a previous eviction action, which was dismissed without prejudice just two months earlier.
OPINION: We have before us your request for an advisory opinion based upon the following hypothetical facts:
Attorney A represents Landlord seeking to evict Tenant. When Tenant receives a termination notice, Tenant consults Attorney B. Attorney B contacts Attorney A to discuss the matter, but they are unable to resolve the matter out-of-court. Attorney A files an eviction. Attorney B answers on behalf of Tenant. Recognizing deficiencies in the complaint, Attorney A voluntarily dismisses the eviction without prejudice.
Two months later, Attorney A refiles the eviction, but makes no effort to notify Attorney B, even though Attorney A is aware that Attorney B represented Tenant in the same matter just two months earlier. Tenant receives notice of the eviction, but doesn't notify Attorney B, since Tenant assumes Attorney B has been notified by Attorney A or the court. Attorney B does not learn about the eviction until Tenant calls him from court during trial. Tenant is forced to defend herself, but is incompetent to do so. Tenant is evicted.
Your specific question is whether the conduct of "Attorney A" is unethical or unprofessional in any way.
We believe that Attorney A has no ethical obligation to notify Attorney B regarding the eviction action. The attorney for the landlord must effect service of process on the tenant in accordance with Rule 4 of the Rules of Civil Procedure. It is the responsibility of the tenant to notify his or her attorney, if he or she so desires, regarding the notice of eviction.
However, as a professional courtesy, the landlord's lawyer might have tried to determine whether the tenant would be represented by the attorney who previously represented the tenant in a separate eviction action.
In conclusion, it is our opinion and you are so advised that an attorney who files an eviction is not ethically obligated to contact an attorney who represented the tenant in a similar action two months earlier. It is the responsibility of the tenant to contact his or her attorney, if he or she so desires.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.