Can an Ohio law firm advertise and run a pay-per-call dial-a-lawyer telephone legal advice service?

Plain-English summary

The Board addressed whether a law firm may advertise and operate a dial-a-lawyer service that offers legal advice over the telephone for a fee, using newspaper, radio, and television advertising of a toll-free or 900 number. The Board found that no Ohio disciplinary rule categorically prohibits such a service, but identified a series of rules that place ethical restrictions on it. Advertising must comply with DR 2-101 (no false, fraudulent, misleading, or deceptive communication, and the related fee and broadcast requirements). The firm cannot advertise or provide the service under a trade name and must use the firm's own name under DR 2-102(B).

The Board further explained that providing legal advice by telephone is the practice of law, so a lawyer cannot form a partnership with a nonlawyer to provide the service under DR 3-102(A) and Governing Bar Rule III. The lawyer must act competently under DR 6-101(A), and if the lawyer cannot give the advice sought or cannot give it proper consideration by phone, the lawyer should so inform the caller but should not recommend employment of the lawyer or the firm under DR 2-103(A) unless the caller asks for advice about hiring a lawyer. The lawyer must protect client confidences and secrets under DR 4-101(B), noting that communications over mobile equipment may not be privileged, must not charge a clearly excessive fee under DR 2-106(A), and must consider conflicts of interest among callers under DR 5-105, with the service also subject to applicable federal, state, and local laws.

The Board concluded that, within those restrictions, it is proper under the Ohio Code of Professional Responsibility for a law firm to advertise and operate a dial-a-lawyer service offering legal advice over the telephone for a fee, and that such telephone advice constitutes professional legal employment through which the lawyer owes the caller all the traditional duties owed to a client.

Currency note

This opinion issued in 1992 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007).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 flags it as not current because of subsequent rule amendments to DR 2-101 through DR 2-105. 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 Treat this page as historical context, not current guidance.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 law firm run a pay-per-call legal advice phone line?

A: Under this opinion, yes. The Board concluded it is not improper for a law firm to advertise and operate a dial-a-lawyer service offering legal advice over the telephone for a fee, subject to the listed disciplinary rules.

Q: Does giving advice by phone create a lawyer-client relationship?

A: Yes. The opinion concluded that such telephone advice constitutes professional legal employment through which the lawyer owes the caller all the traditional duties owed by a lawyer to a client.

Q: Can the service operate under a catchy trade name?

A: No. The opinion concluded that under DR 2-102(B) a law firm cannot advertise and provide the service under a trade name and should use the firm's name.

Q: Can a nonlawyer be a business partner in the service?

A: No. The opinion concluded that because providing legal advice by phone is the practice of law, DR 3-102(A) and Governing Bar Rule III bar a lawyer from forming a partnership with a nonlawyer to provide the service.

Background and rules framework

The opinion interprets the former Code of Professional Responsibility DR 2-101 through DR 2-106 (advertising, trade names, recommendation of employment, fees), DR 3-102(A) (no nonlawyer partnership in the practice of law), DR 4-101(B) (confidentiality), DR 5-105 (conflicts), and DR 6-101(A) (competence). The analogous Model Rules provisions include MR 7.1 and MR 7.2 (communications and advertising), MR 5.4 (professional independence), and MR 1.6 (confidentiality).

Citations and references

Rules of Professional Responsibility (Ohio, former):

• DR 2-101, DR 2-102(B), DR 2-103(A), DR 2-106(A), advertising, trade names, recommendation of employment, fees
• DR 3-102(A), nonlawyer partnership; DR 4-101(B), confidentiality; DR 5-105, conflicts; DR 6-101(A), competence

Other opinions cited:

• Florida Bar, Op. 88-13 (1988): "Legal Hotline Inc." improper as a referral service and misleading name
• Los Angeles County Bar Ass'n, Op. 449 (1988); Virginia State Bar Ass'n, Op. 1328 (1990): telephone advice as professional employment; misleading advertising
• Illinois State Bar Ass'n, Op. 90-7 (1990): confidentiality over mobile telecommunications

See also

• Ohio BPC Op. 1990-002: Telemarketing Solicitation of Clients
• Ohio BPC Op. 1992-001: Bar Association Referral Service Fees and Conditions
• Ohio BPC Op. 1989-027: Trade Name, Geographic Location, Legal Center
• Ohio BPC Op. 1991-007: For-Profit Lawyer Referral Service and Joint Advertising

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-92-010.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 92-10
Issued April 10, 1992

[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 through 2-105.]

SYLLABUS: In Ohio it is not improper for a law firm to advertise and operate a dial-a-lawyer service offering legal advice by lawyers to callers over a telephone for a fee. However, there are several disciplinary rules that place ethical, restrictions on such dial-a-lawyer services: Disciplinary Rules 2-101, 2-102, 2-103, 2-104, 2-105, 2-106, 3-103, 4-101, 5-101, and 6-101. Such telephone advice constitutes professional legal employment through which the lawyer owes the caller all the traditional duties owed by a lawyer to a client.

OPINION: The question presented is whether it is proper under the Ohio Code of Professional Responsibility for a law firm to advertise and operate a dial-a-lawyer service offering legal advice over the telephone for a fee. The law firm plans to advertise through newspaper, radio and television media a tollfree telephone number and or a 900 number. The proposed advertisements would offer to explain areas of law in plain language. The explanations would be based on precedent, statute, judicial decisions or a combination thereof in terms understandable to a layperson. Computerized legal research would be used. The fee for the telephone advice would be fair and fully explained in all advertisements. The service would be primarily advisory, but courtroom representation would be available if needed.

Dial-a-lawyer services offering legal advice over the telephone for a fee are available in several states. See David Margolick, Can't Afford a Lawyer? In the 900 Directory, Advice is $3 a Minute, N.Y. Times, December 28, 1990, at B6. The hallmark of the services is the offering of legal advice in a relatively short period of time at fees affordable to the majority of the public. Even so, their use has raised questions as to whether such services violate ethics rules governing the practice of law. Although it is not unusual for lawyers to provide legal advice to their clients over the telephone, it seems unusual when this legal advice is given to a caller with whom the lawyer has no previous professional relationship.

Several ethics committees have issued opinions on this issue. The Professional Ethics Committee of the Florida Bar has advised that ethical problems exist in a law firm forming a corporation with a name such as "Legal Hotline Inc." inviting inquiries from the public about legal problems and referring all inquiries back to the law firm. Florida Bar, Op. 88-13 (1988). According to the committee, the corporation would function as an improper lawyer referral service; the name of the corporation would be misleading as it implies the corporation can provide legal advice; and it would violate the rule that forbids Florida lawyers from practicing law through a corporate entity other than a professional corporation or association organized under the statute. The Florida committee cited Rule 4-7.6 and Florida Statutes Chapter 621. Id.

The Ethics Committee of the Los Angeles County Bar Association has advised that "[a] telephone 'hot line' to give advice for a fee to callers on questions of Workers' Compensation law can ethically be established by an attorney proficient in the field of Workers' Compensation law but the giving of such telephone advice constitutes professional employment which imposes on the attorney all the obligations inherent in a lawyer-client relationship." Los Angeles Cty Bar Ass'n, Op. 449 (1988). The committee cited Disciplinary Rules 2-101, 5-102 (A) and (B), and 6-101 and Cal. Bus. & Prof. Code, §6068 (e) (duty of confidentiality). Id.

The Standing Committee on Legal Ethics of the Virginia State Bar has advised that a lawyer may not offer in an advertisement that the lawyer will answer all legal questions on the telephone for a year for a specified sum because such statement is misleading in that the lawyer may not be competent in a given area to answer the questions and the lawyer may have other clients with conflicting interests. Virginia State Bar Ass'n, Op. 1328 (1990). The committee cited its Opinion 369, Disciplinary Rules 2-101 (A), 2-103 (A) (1) (2), 4-101 (B), 5-105 (C) (D), 6-101 (A), and Ethical Consideration 2-9. Id.

In Ohio there are no disciplinary rules within the Code of Professional Responsibility that would categorically prohibit a dial-a-lawyer service offering legal advice by lawyers to callers over a telephone. However, there are several disciplinary rules that place ethical restrictions on dial-a-lawyer services: Disciplinary Rules 2-101, 2-102, 2-103, 2-104, 2-105, 2-106, 3-103, 4-101, 5-101, and 6-101. These rules and restrictions are discussed below.

1. In advertising a dial-a-lawyer service, a law firm must comply with the Code's rules regarding advertising. The well known requirement 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." The law firm should also thoroughly review the requirements of the following rules: 2-101(B), providing for publication or broadcast of information in written or printed material through the mail or otherwise or over radio or television; 2-101 (C), defining false or misleading communication, 2-101 (D), requiring that advertisements over the radio or television be prerecorded, approved by lawyer, and a copy kept; 2-101(E), (F), and (G), setting forth requirements regarding fee information; 2-101(H) admonishing a lawyer not to compensate or give any thing of value to the media in anticipation of or in return for professional publicity in a news item; and 2-105 that prohibits, with exceptions, a lawyer from holding out publicly as a specialist or as limiting practice.

2. A law firm cannot advertise and provide a dial-a-lawyer service under a trade name. The law firm's name should be used in advertising the service. Disciplinary Rule 2-102 (B) requires that "[a] lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association or legal clinic may contain "P.C." or "P.A." or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession."

3. A lawyer cannot form a partnership or a professional association with a non-lawyer to provide dial-a-lawyer services. Providing legal advice over the telephone is the practice of law. Disciplinary Rule 3-102 (A) requires that "[a] lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law." Governing Bar Rule III Section 3(E) of the Supreme Court Rules of the Government of the Bar of Ohio states that "[p]rofessional associations between lawyers and members of other professions or non-professional persons are not permitted where any part of an association's activities consist of the practice of law.

4. In providing dial-a-lawyer services a lawyer must act competently. Under Disciplinary Rule 6-101 (A) "[a] lawyer shall not: (1) Handle a legal matter which he [she] knows or should know that he [she] is not competent to handle, without associating with him [her] a lawyer who is competent to handle it. (2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him [her].

5. If the lawyer offering advice through the dial-a-lawyer service cannot provide the advice sought, or if the lawyer determines that the advice sought cannot be given proper consideration through telephone consultation the lawyer should inform the telephone client of such, but should not recommend employment of the lawyer or of a partner or associate of the law firm, unless the caller asks for advice regarding employment of a lawyer. Disciplinary 2-103 (A) requires that "[a] lawyer shall not recommend employment, as a private practitioner, of himself [herself], his [her] partner, or associate to a non-lawyer who has not sought his (her) advice regarding employment of a lawyer, except as provided in DR 2-101. For example, it would be improper to offer to represent the caller in the courtroom, if the caller did not ask for advice regarding employing a lawyer. See also DR 2-104.

6. A lawyer providing legal advice through a dial-a-lawyer service must protect the confidences and secrets of a telephone client. Under Disciplinary Rule 4-101(B) "[e]xcept when permitted under DR 4-101 (C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his [her] client. (2) Use a confidence or secret of his [her] client to the disadvantage of the client. (3)Use a confidence or secret of his [her] client for the advantage of himself [herself] or of a third person unless the client consents after full disclosure." The lawyer and law firm should be aware that confidentiality of communications over mobile telecommunications equipment may not be communication protected by the attorney client privilege. See Illinois State Bar Ass'n, Op. 90-7 (1990).

7. A law firm cannot charge an excessive fee for the dial-a-lawyer service. Disciplinary Rule 2-106 (A) states that "[a] lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."

8. In rendering legal advice through the dial-a-lawyer service a lawyer must consider whether there exists a conflict of interest among clients. Disciplinary Rule 5-105 should be reviewed thoroughly. Extensive record keeping might be needed to avoid representation of adverse interests. The attorneys should not respond to questions without sufficient inquiry into the facts and the people involved.

9. In advertising and operating a dial-a-lawyer service through a toll free telephone number and/or a 900 number a law firm must abide by applicable federal, state, and local laws.

In conclusion, it is the Board's opinion that within the ambit of the above ethical restrictions, it is proper under the Ohio Code of Professional Responsibility for a law firm to advertise and operate a dial-a-lawyer service that offers legal advice over the telephone for a fee. Such telephone advice constitutes professional legal employment through which the lawyer owes the caller all the traditional duties owed by a lawyer to a client.

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.