Can a legal aid lawyer hand an unrepresented indigent person her card in court and offer to represent them for free?
Ohio BPC Opinion 90-011: Whether a Legal Services Lawyer May Make an In-Person Offer to Represent an Unrepresented Indigent Defendant
Short answer: The Board concluded that a legal services lawyer may ethically make an in-person, no-fee offer to represent an indigent defendant who has appeared in court without representation.
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 legal services attorney could make an in-person offer to represent an indigent defendant who appeared in court without representation, where the offer was not for the legal aid lawyer's pecuniary gain. In the hypothetical, a legal aid attorney waiting for her own client's case watched an unrepresented welfare recipient lose an eviction after the court declined to consider procedural irregularities, then handed the defendant her card indicating she would discuss the case if he called the legal aid office.
The Board explained that DR 2-103(A) prohibits a lawyer from recommending herself as a private practitioner to a non-lawyer who has not sought her advice about employing a lawyer, but that the Code does not prohibit a lawyer from communicating with persons whose legal rights may be in jeopardy when the lawyer does not intend to gain paying clients. It reasoned that prohibited solicitation occurs where the lawyer recommends employment of herself as a private practitioner, and that the Code does not prohibit giving unsolicited legal advice, even in person, unless the lawyer accepts employment resulting from the advice for pecuniary gain. The Board found the conduct permitted under DR 2-104(A)(3), and quoted EC 2-1 and EC 2-3 on the profession's role in helping the public recognize legal problems and obtain counsel, while noting advice is improper if motivated by personal benefit, publicity, or to harass.
The Board reasoned that the Code places legal services lawyers on different ethical grounds, encouraging them to ensure the poor are adequately represented, citing the ABA's long-standing position (Formal Op. 148 (1935); Formal Op. 334 (1974)) and the U.S. Supreme Court's account of the anti-solicitation rule in Ohralik v. Ohio State Bar Association, which serves to reduce overreaching, undue influence, and pecuniary self-interest. It contrasted In re Primus, where the lawyer's motivation was non-pecuniary and ideological, with the pecuniary motivation in Ohralik. The Board concluded that a legal services lawyer may ethically make an in-person offer to represent an indigent defendant who has appeared in court without representation, framing the opinion as an extension of its earlier Informal Op. 88-3 and limiting it to legal aid attorneys who receive no fee or remuneration.
Currency note
The Board withdrew this opinion by Advisory Opinion 2023-02. It issued in 1990 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions 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: Can a legal aid lawyer approach an unrepresented person in court and offer to take the case?
A: Under this opinion, yes, where the representation is offered without fee. The Board concluded such an in-person offer by a legal services lawyer is permitted under DR 2-104(A)(3).
Q: Why doesn't the in-person solicitation rule bar this?
A: The Board reasoned that DR 2-103(A) targets a lawyer recommending herself as a private practitioner for pecuniary gain; it does not bar communicating with a person whose rights are in jeopardy when the lawyer does not intend to gain a paying client.
Q: Does it matter that the legal aid lawyer earns no fee?
A: Yes. The Board limited the opinion to legal aid attorneys who receive no fee or remuneration, distinguishing the pecuniary solicitation condemned in Ohralik from non-pecuniary, ideological representation as in Primus.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility: DR 2-103(A) (recommending oneself to a non-lawyer who has not sought advice), DR 2-104(A)(3) (unsolicited advice and resulting employment), and Ethical Considerations EC 2-1, EC 2-3, and EC 2-24 on access to legal services and the obligation to serve those unable to pay. The Board read these against the constitutional solicitation cases Ohralik and Primus.
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 2-103(A), recommending oneself as a private practitioner to a non-lawyer
- DR 2-104(A)(3), unsolicited advice and resulting employment in legal services contexts
- EC 2-1, EC 2-3, EC 2-24, public access to legal services and pro bono obligation
Cases:
- Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), purpose of the anti-solicitation rule
- In re Primus, 436 U.S. 412 (1978), First Amendment protection for non-pecuniary, ideological representation
- NAACP v. Button, 371 U.S. 415 (1963), associational litigation activity
Other opinions cited:
- ABA Formal Op. 148 (1935); Formal Op. 334 (1974); Informal Op. 1339 (1975): legal services and solicitation
- Board of Commissioners Op. 88-03 (1988): direct-mail solicitation of indigent clients
- Alaska Bar Association Op. 81-1 (1981): in-person pro bono offer to a genuinely indigent defendant
See also
- Ohio BPC Op. 1990-002: Telemarketing Solicitation of Clients
- Ohio BPC Op. 1989-030: Group Legal Television Advertising
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-011.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 90-11
Issued June 15, 1990
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.]
SYLLABUS: A legal services attorney may make an in-person offer to represent an indigent defendant who has appeared in court without representation. Canon 2 of the Code of Professional Responsibility prohibits in-person solicitation which is overreaching and for the lawyer's own pecuniary self-interest.
OPINION: We have before us your request for an informal advisory opinion regarding the right of a legal services attorney to make an in-person offer to represent an indigent defendant who has appeared in court without representation. The offer to represent would not be for the legal aid lawyer's pecuniary gain.
The hypothetical situation you present has the legal services attorney sitting in court waiting for her client's case to be called. During the wait, an unrepresented welfare recipient attempts to defend himself in an eviction case. The court refuses to consider procedural irregularities in the filing of the action and grants the eviction. The legal aid attorney believes the court has ruled improperly. The legal aid attorney hands the unrepresented defendant her card indicating she would be willing to discuss the eviction case and that he should call the legal aid office if interested. The attorney then returns to the courtroom to represent her client.
Disciplinary Rule 2-103 (A) prohibits a lawyer from recommending herself as a private practitioner to a non-lawyer who has not sought her advice regarding employment of a lawyer. However, the Code of Professional Responsibility does not prohibit a lawyer from communicating with persons whose legal rights may be in jeopardy when the lawyer is not thereby intending to gain paying clients. Prohibited solicitation would occur if the lawyer recommends employment of herself as a private practitioner. Code of Professional Responsibility DR 2-103(A). The Code does not prohibit a lawyer from giving unsolicited legal advice, even when such advice is given in person, unless the lawyer accepts employment resulting from the advice. In our view, this "accepting employment" prohibition applies to private practitioners where pecuniary gain is involved.
The Code does encourage a lawyer to assist laymen in this regard:
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 educate laymen to recognize their legal problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available. 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. [T]he advice is improper if motivated by a desire to obtain personal benefit, secure personal publicity, or cause litigation to be brought merely to harass or injure another. Code of Professional Responsibility, EC 2-1, 2-3.
The activity set forth in the hypothetical is permitted under DR 2-104(A) (3). In our view, the Code of Professional Responsibility places legal services lawyers on different ethical grounds. Legal services lawyers are encouraged to see that the poor are adequately represented. As early as 1935, the ABA held that the broadcast of an offer to represent indigent persons in asserting their constitutional rights was not improper. ABA Committee on Ethics and Professional Responsibility Formal Op. 148 (1935). In that opinion a legal aid lawyer was soliciting indigent clients known to need specific legal services through the use of direct mail advertising.
We agree with the ABA that it is important to avoid imposing any unreasonable or unjustified restraints on legal services offices for the benefit of the indigent, and that we should work to remove such restraints where they exist. All lawyers should support all proper efforts to meet the public's need for legal services. ABA Committee on Ethics and Professional Responsibility Formal Op. 334 (1974).
The U.S. Supreme Court spelled out the purpose of the anti-solicitation rule in the case of Ohralik vs. Ohio State Bar Association, 436 U.S. 447 (1978):
[The rule] serve[s] to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer's exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest. Id. at 461.
The Court, however, has created exceptions to the anti-solicitation rule. In the case of In re Primus, 436 U.S. 412 (1978), the Court cited prior case law holding that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right with the protection of the First Amendment." The Court reasoned that the broader First Amendment protection was warranted in Primus because the evils were less plausibly involved and because of the non-pecuniary and ideological nature of the lawyer's reason for soliciting. The motivation in Ohralik was pecuniary. In Primus, the attorney's motivation was not for pecuniary gain or to create litigation. The motivation was to assist indigents in locating and selecting a competent lawyer.
Similarly, the ABA stated, in referring to NAACP v. Button, 371 U.S. 415 (1963), "the old regulations against fomenting litigation, solicitation and intervention of intermediaries were directed toward the malicious intent of those seeking 'private gain, serving no public interest,' or seeking to use the legal machinery to oppress. These underlying policies must be kept in mind when interpreting and applying the Disciplinary Rules of Canon 2." ABA Committee on Ethics and Professional Responsibility, Informal Op. 1339 (1975).
The Code and ethical considerations mandate that legal services programs exist, that they be supported by the bench and bar, and that they provide legal services to those that cannot afford them. See, EC 8-3, EC 2-15, EC 2-24, EC 2-32. For example, EC 2-24 states in part:
The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services.
In an earlier opinion we stated that a legal aid lawyer may solicit indigent clients known to need specific legal services through the use of direct mail advertising. Board of Commissioners Op. 88-03 (1988). One state bar association has stated that a lawyer may make an in-person offer to represent a genuinely indigent defendant on a pro bono basis. Alaska Bar Association Op. 81-1 (1981).
In conclusion, it is the Board's opinion and you are so advised that a legal services lawyer may ethically make an in-person offer to represent an indigent defendant who has appeared in court without representation. This advisory opinion is an extension of our earlier Informal Op. 88-3 and is limited to the legal aid attorney who receives no fee or remuneration for the representation.
This in an informal, non-binding advisory opinion, based upon the facts as presented and limited to questions arising under the Code of Professional Responsibility.