Can a lawyer write to a business to offer to represent it or to be hired as in-house counsel?

Plain-English summary

The Board addressed two related questions: whether an attorney may contact, by mail or telephone, an officer or manager of a business to seek general representation where the business routinely employs attorneys, and whether an attorney may contact a business to suggest being hired as in-house counsel. Because seeking employment involves publicity and self-recommendation, the Board applied both DR 2-101 (publicity) and DR 2-103 (recommendation of professional employment).

Under DR 2-101(A), a lawyer may not use any communication that is false, fraudulent, misleading, or deceptive, and DR 2-101(B) permits communication with potential consumers through specified channels, including printed material through the mail. The Board explained that DR 2-103(C) (asking another to recommend the lawyer) did not govern, because the lawyer was recommending himself to the business rather than asking the business to recommend him to others; the relevant provision was DR 2-103(A), which permits self-recommendation as allowed by DR 2-101, reinforced by DR 2-103(E). The Board also reviewed the constitutional line drawn in Bates, Shapero, and Ohralik, under which truthful, nondeceptive letters to potential clients may not be categorically barred even though in-person solicitation may be.

The Board concluded that an attorney may contact an officer or manager of a business to offer general representation (where the business routinely uses lawyers) or to suggest being hired as in-house counsel, if the communication complies with DR 2-101 and DR 2-103. It advised that the contact be by mail and not by telephone, because DR 2-101(B) does not list telephoning among permitted methods, and consistent with Op. 90-2 (telephone solicitation creates a sense of urgency and invades privacy). The Board also noted its prior advice (Op. 87-4) that follow-up communications should not be made unless the recipient responds positively to the first written contact.

Currency note

This opinion issued in 1991 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). The Board's status list also notes it is not current due to subsequent rule amendments to DR 2-101 (effective January 1, 1993, August 16, 1993, and January 1, 2000) and DR 2-103 (effective July 1, 1993, and November 1, 1999). 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 lawyer mail a business offering to represent it?

A: Under this opinion, yes, where the business routinely employs attorneys for corporate work, provided the communication complies with DR 2-101 and DR 2-103.

Q: Can a lawyer write a business to ask to be hired as in-house counsel?

A: The opinion concluded that an attorney may contact an officer or manager to suggest being hired as in-house counsel, and advised that the contact be by mail rather than telephone.

Q: Why mail and not a phone call?

A: The Board advised mail because DR 2-101(B) does not list telephoning among permitted communication methods, and it had previously stated that telephone solicitation creates a sense of urgency and invades privacy (Op. 90-2).

Background and rules framework

The opinion interprets the former Code of Professional Responsibility DR 2-101 (publicity, including DR 2-101(A) on misleading communication and DR 2-101(B) on permitted methods) and DR 2-103 (recommendation of professional employment, including DR 2-103(A) self-recommendation as allowed by DR 2-101, DR 2-103(C) requesting recommendations, and DR 2-103(E) accepting employment from one's own advertising).

Citations and references

Rules of Professional Responsibility (Ohio, former):

• DR 2-101(A) and (B), publicity and permitted communication methods
• DR 2-103(A), self-recommendation as permitted by DR 2-101
• DR 2-103(C), requesting recommendations; DR 2-103(E), employment from one's own advertising

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising as protected speech
• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988), targeted truthful direct mail may not be barred
• Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), in-person solicitation may be banned

Other opinions cited:

• Ohio Sup.Ct. Ops. 88-3 (1988), 90-21 (1990), 91-4 (1991): direct-mail solicitation of individuals
• Ohio Sup.Ct. Op. 91-17 (1991): writing a union representative
• Ohio Sup.Ct. Ops. 90-2 (1990), 87-4: telephone solicitation and follow-up communications

See also

• Ohio BPC Op. 1990-021: Targeted Direct Mail Solicitation
• Ohio BPC Op. 1988-003: Legal Aid Lawyer Direct-Mail Solicitation
• Ohio BPC Op. 1990-002: Telemarketing Solicitation of Clients
• Ohio BPC Op. 1991-017: Soliciting a Union to Recommend the Firm to Members

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-026.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 91-26
Issued December 6, 1991

[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. Jul. 1, 1993, Nov. 1, 1999.]

SYLLABUS: An attorney may contact by mail an officer or manager of a business regarding employing the lawyer for general representation of the business, where the business routinely employs attorneys to handle corporate work provided that such communication complies with Disciplinary Rule 2-101 and Disciplinary Rule 2-103. Similarly, an attorney may contact by mail an officer or manager of a business for the purpose of suggesting that the business hire the attorney as an employee to serve as inhouse counsel. Such contact should be by mail and not by telephone.

OPINION: Two related questions are presented, both regarding an attorney seeking legal employment from a business.

1. May an attorney contact, by mail or by telephone, an officer or manager of a business regarding employing the lawyer for general representation of the business, where the business routinely employs attorneys to handle corporate work?

2. May an attorney contact, by mail or by telephone, an officer or manager of a business for the purpose of suggesting that the business hire the attorney as an employee to serve as in house counsel?

Disciplinary Rule 2-101 of the Code of Professional Responsibility governs publicity by lawyers. Disciplinary Rule 2-103 governs recommendation of professional employment. Since it is axiomatic that in seeking employment some publicity and recommendations about oneself are involved, both rules are applicable to the questions addressed by this opinion.

As to the publicity rule, the broad proviso of Disciplinary Rule 2-101(A) is that 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." False and fraudulent communication is defined within Disciplinary Rule 2-101(C). Under a well known provision of the publicity rule, Disciplinary Rule 2-101(B), an attorney is allowed to communicate with potential consumers of legal services through the radio or television or by printed material through the mail or otherwise, provided that such communication is in compliance with Disciplinary Rule 2-101(A), and subject to Disciplinary Rule 2-102 through Disciplinary Rule 2-105 which provide specific rules on professional cards, announcement cards, office signs, letterheads, firm names, recommendations, and limitations on practice.

As to the rule governing recommendations of professional employment, several provisions should be noted. Disciplinary Rule 2-103(C) prohibits, with certain exceptions, a lawyer from requesting a person or organization to recommend or promote the use of his services as a private practitioner; however, this rule does not govern the issues raised in this opinion because the lawyer is not asking the business to recommend him or promote him to others, but rather the lawyer is asking whether it is proper to recommend or promote him or herself to the business. Therefore, more pertinent to this opinion is Disciplinary Rule 2-103(A) which requires that "[a] lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer, except as provided in DR 2-101." By operation, Disciplinary Rule 2-103(A) allows a lawyer to seek employment through advertisement as provided for in Disciplinary Rule 2-101. In support, Disciplinary Rule 2-103(E) states that "[n]othing in this Rule [Disciplinary Rule 2-103] prohibits a lawyer from accepting employment received in response to his own advertising, provided such advertising is in compliance with DR 2-101."

Also relevant are several Supreme Court opinions. Since 1977, lawyer advertising has been recognized and treated as a category of constitutionally protected speech. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977). As a consequence, states may not categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. See Shapero v. Kentucky Bar Ass'n 486 U.S. 466 (1988). However, in-person solicitation by lawyers can be banned, under circumstances likely to pose dangers that the State has a right to prevent. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 449 (1978).

In keeping with these opinions, this Board has advised that a lawyer may make written contact with individuals if such contact is in compliance with the Code. For example, a lawyer may direct mail solicit indigent clients known to need legal representation. Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 88-3 (1988). A lawyer may direct mail solicit potential clients for representation in criminal matters. Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 90-21(1990). A lawyer may direct mail solicit individuals whose names have been obtained from published notices of foreclosures or suits filed. Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 91-4 (1991).

As to contacting businesses or organizations, this Board has issued one opinion advising that an attorney may write a union representative requesting that the attorney's firm be considered for recommendation of employment to the union membership. Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 91-17 (1991). However, that opinion does not apply to the questions presented for two reasons: the union was being asked to make a recommendation of employment of the attorney's firm to union members and it involved bona fide organizations for which the Code provides special rules. Id. Thus, this Board has not addressed the precise issue of whether an attorney may contact a business to seek legal employment.

As a practical matter, an attorney who seeks legal employment from a business must communicate with the business. Since states may not categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems, Shapero v. Kentucky Bar Ass'n 486 U.S. 466 (1988), it follows that a state could not categorically prohibit lawyers from soliciting legal employment from businesses. Nor does the language of the Code suggest such prohibition. Disciplinary Rule 2-103(A), while restricting recommendations of professional employment, specifically allows for communications as provided for in Disciplinary Rule 2-101. Since Disciplinary Rule 2-101(A) by its language governs "any form of communication," communications by a lawyer seeking employment, even though directed to businesses or organizations, are communications governed by Disciplinary Rule 2-101.

Thus, in answer to the questions presented, this Board's opinion is that an attorney may contact an officer or manager of a business regarding employing the lawyer for general representation of the business, where the business routinely employs attorneys to handle corporate work provided that such communication complies with Disciplinary Rule 2-101 and Disciplinary Rule 2-103. Similarly, an attorney may contact an officer or manager of a business for the purpose of suggesting that the business hire the attorney as an employee to serve as inhouse counsel. However, the Board advises that such contact be by mail and not by telephone. This suggestion is consistent with Disciplinary Rule 2-101(B) which does not include telephoning in its list of methods by which an attorney may advance the informed selection process of lawyers to potential consumers of legal services. It is also consistent with a past opinion of the Board which stated that "[a]lthough telephone solicitation may be less intrusive than in-person solicitation, we believe it creates a sense of urgency and is an invasion of privacy." Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 90-2 (1990).

Finally, a cautionary word about follow-up communications may be warranted. Though the Code does not specifically address this issue, this Board has stated in a prior opinion that "[i]t is our belief that no follow-up communication should be made unless the recipient responds positively to the first, written announcement." Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 87-4.

In conclusion, the Code of Professional Responsibility does allow, with restrictions, an attorney to communicate in order to seek legal employment. However, the Code does establish rules and requirements for such communications and recommendations of professional employment, found within Disciplinary Rule 2-101 and Disciplinary Rule 2-103, and these rules and the rules cited therein must be followed.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.