Can an Ohio lawyer use a telemarketing program that cold-calls people to find clients?
Ohio BPC Opinion 90-002: Telemarketing as Solicitation of Clients
Short answer: The Board concluded that telemarketing is an intrusive form of solicitation that invades privacy and pressures recipients for an immediate answer, and it advised lawyers not to use a telemarketing program to solicit new clients.
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.
Plain-English summary
The Board addressed whether a lawyer could participate in a telemarketing program that placed calls to selected telephone exchanges to determine whether the lawyer's services were needed. Under the program, an initial call (by a computer-generated voice or a person following a script) would gather an interested person's information; the telemarketing firm would screen using the lawyer's criteria; and the lawyer would then contact qualifying people to schedule a free consultation, paying the firm a fixed monthly rate.
The Board noted that DR 2-101 addressed radio, television, and print advertising but did not mention telephone advertising, and that DR 2-103(B) bars compensating a person or organization to recommend or secure employment. It characterized telemarketing as a form of solicitation undertaken for pecuniary gain. Reviewing the constitutional line of cases, it discussed Ohralik v. Ohio State Bar Assn (in-person solicitation may be prohibited because of overreaching and the difficulty of monitoring), In re Primus (ideological, non-pecuniary solicitation is protected), and Shapero v. Kentucky Bar Assn (states may not ban targeted direct-mail solicitation, which leaves a written record). It also cited Woll v. Kelley on the pressure a telephone call can create.
The Board reasoned that, like in-person solicitation, telephone solicitation cannot be effectively monitored to prevent overreaching or misrepresentation, and that it creates a sense of urgency and invades privacy. It distinguished its earlier Opinion 89-30 (an injury helpline the client called in response to a television ad) and a 1988 opinion on the Talking Yellow Pages, in both of which the potential client made the initial call. Because of its answer to the first question, the Board did not reach the unauthorized-practice and payment questions, and it advised that lawyers should not participate in telemarketing.
Currency note
This opinion issued in 1990 under Ohio's former Code of Professional Responsibility, which the bar notes is superseded by the Ohio Rules of Professional Conduct effective February 1, 2007, with subsequent amendments to DR 2-101 (effective January 1, 1993 and August 16, 1993) and DR 2-103 (effective July 1, 1996). Subsequent rule amendments and later decisions on lawyer solicitation may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Did the Board permit lawyer telemarketing under the 1990 rules?
A: No. The Board characterized telemarketing as intrusive solicitation for pecuniary gain and advised lawyers not to participate in such a program.
Q: Why did the Board treat telephone solicitation differently from advertising?
A: It reasoned that telephone solicitation, like in-person solicitation, cannot be effectively monitored to prevent overreaching, creates a sense of urgency, and invades privacy, distinguishing it from advertising where the client initiates contact.
Q: How did the Board distinguish its earlier helpline and Talking Yellow Pages opinions?
A: In those, the potential client made the initial call in response to an advertisement, and no immediate answer was required, unlike an unsolicited telemarketing call.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility: DR 2-101 (advertising), DR 2-103(B) (compensating others to recommend or secure employment), and DR 2-103(E) (accepting employment from one's own compliant advertising). It discusses, without adopting, ABA Model Rule 7.3 on solicitation.
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 2-101, lawyer advertising
- DR 2-103(B), compensating a person or organization to recommend employment
- DR 2-103(E), employment from the lawyer's own advertising
Cases:
- Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978), in-person solicitation for pecuniary gain
- In re Primus, 436 U.S. 412 (1978), protected ideological solicitation
- Shapero v. Kentucky Bar Assn, 486 U.S. 466 (1988), targeted direct-mail solicitation
- Woll v. Kelley, 116 Mich.App. 791, 323 N.W.2d 560 (1982), pressure of improper solicitation
Other opinions cited:
- Board of Commissioners, Op. 89-30 (1989): injury-helpline advertising where the client calls in
See also
- Ohio BPC Op. 1989-030: Group Legal Television Advertising
- Ohio BPC Op. 1988-003: Legal-Aid Lawyer Direct-Mail Solicitation
- Ohio BPC Op. 1988-027: Advertising in the Talking Yellow Pages
- Ohio BPC Op. 1988-009: Soliciting Referrals From Non-Bar Organizations
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-002.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 90-2
Issued February 23, 1990
[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 and Aug. 16, 1993; DR 2-103, eff. Jul. 1, 1996.]
SYLLABUS: The solicitation of clients for pecuniary gain is prohibited when the method used presents a significant danger of overreaching, undue influence or the invasion of privacy. Telemarketing involves telephone contacts directed to certain exchanges whereby all phone numbers in that area are called to determine whether the advertised services are needed. In our view, telemarketing legal services creates the potential for overreaching and is an invasion of privacy. In addition, telemarketing places undue pressure on the potential client for an immediate answer. Therefore, we advise lawyers not to engage in a telemarketing program to solicit new clients.
OPINION: We have before us your request, for an advisory opinion on whether it is ethical for a lawyer to participate in a telemarketing program. The program uses phone contacts to selected telephone exchange areas to determine whether the lawyer's services are needed. The initial phone call can be made by either a computer generated voice or, a person employed by the telemarketing firm; both would follow a pre-determined script.
If the recipient is interested in a free initial consultation, she gives her name, phone number and a brief description of the problem. The telemarketing firm recontacts the interested person for further screening using criteria supplied by the lawyer involved. The lawyer then contacts those persons who meet the criteria to schedule a free initial consultation. The fee for the telemarketing is a fixed monthly rate.
Your particular questions are as follows:
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Is telemarketing as a form of advertising, under any format, permissible under the Code of Professional Responsibility?
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At what point, if any, does the telemarketing firm's screening process constitute the unauthorized practice of law?
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How should the telemarketing firm be paid for its services?
Disciplinary Rule 2-101 relates to lawyers advertising; it provides for radio, television, and print advertising but does not mention telephone advertising. A lawyer is not permitted to compensate a person or organization to recommend or secure his or her employment by a client. Code of Professional Responsibility DR 2-103(B) (exceptions not applicable). This rule does not prohibit a lawyer from accepting employment received in response to his or her own advertising, provided such advertising is in compliance with DR 2-101. Code of Professional Responsibility, DR 2-103 (E).
Although not adopted in Ohio, ABA Model Rule 7.3 states;
(a) A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.
(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a) if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment.
Autodialed recorded communications via the telephone are permitted under the ABA model rules. Model Rule 7.3 Comment.
Your first question asks whether telemarketing, as advertising, is permitted under the Code of Professional Responsibility. Telemarketing in our opinion is a form of solicitation undertaken for pecuniary gain.
There are varying degrees of solicitation by lawyers. In-person solicitation is prohibited because of the dangers of overreaching, fraud and undue pressure. Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978). (uninvited lawyer visited accident victim in hospital armed with an employment contract). The Court in Ohralik was also concerned with the invasion of the prospective client's privacy and the difficulty of monitoring the lawyer's representations made in the face-to-face contact.
Solicitation of prospective clients not for pecuniary gain and based upon the lawyer's ideological concerns where the dangers of overreaching and coercion are not present has been held to be constitutionally protected. In re Primus, 436 U.S. 412 (1978) (ACLU lawyer solicited client through the mail to offer free legal services).
More recently, the U.S. Supreme Court held that a state may not prohibit a lawyer from sending out targeted direct mail solicitation to persons known to need legal services. Shapero v. Kentucky Bar Assn, 486 U.S. 466 (1988). The Shapero Court maintained the ban on in-person solicitation because of the potential for abuse and the difficulty in regulating in-person solicitation. Targeted direct mail solicitation provides a written record of the communication that can be checked for potential abuse. A face-to-face conversation between a lawyer and a potential client cannot be scrutinized by other lawyers or the general public.
Improper solicitation has been defined by a Michigan court as "a situation where the solicitor's position or relation to a prospective client is such that his request may force the recipient into acquiescing to the plea." Woll v. Kelley, 116 Mich.App. 791, 323 N.W.2d 560, 566 (1982). Under this definition a phone call could be construed as improper solicitation because "there may be pressure to accept the offer immediately, thus depriving an individual of an opportunity to reflect and make a reasoned decision." Id. at 566.
As with in-person solicitation, telephone solicitation cannot be effectively monitored in order to prevent any overreaching or misrepresentations. Although telephone solicitation may be less intrusive than in-person solicitation, we believe it creates a sense of urgency and is an invasion of privacy.
In an earlier opinion this Board found that a lawyer could permissibly advertise through an agency which ran commercials for an injury helpline. Board of Commissioners Op. 89-30 (1989). Potential clients who called the toll free number televised were put in touch with a lawyer who bought exclusive rights to receive all calls from that geographic area. Unlike the facts in this request, the client in opinion 89-30 makes the initial call in response to a television advertisement. Moreover, the necessity for an immediate answer is not required with a television advertisement.
In a 1988 opinion, the Board stated that lawyers are permitted to advertise in the Talking Yellow Pages (TYP). Again, after making the initial call, the potential client gets a lawyer's name by random selection from the TYP operator.
Because of the answer to your first question, it is unnecessary to answer questions two and three.
In conclusion, it is our opinion and you are so advised that telemarketing is an intrusive form of solicitation. Telemarketing by a lawyer, or someone on behalf of a lawyer, creates the potential for overreaching and is an invasion of privacy which places undue pressure on the potential client for an immediate answer. Therefore, we recommend that lawyers do not participate in telemarketing.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.