Can a lawyer advertise 'no fee unless you win' for contingent-fee cases without saying anything about costs?

Plain-English summary

The Board addressed contingent-fee advertising slogans suggesting a client pays nothing if the case is lost. It explained that under DR 5-103(B) a client remains ultimately liable for litigation expenses, and that DR 2-101(E)(1)(c) requires a lawyer advertising contingent fees to disclose whether percentages are computed before or after costs and to advise the public that, on an adverse result, the client could be liable for court costs and other litigation expenses.

The Board concluded that phrases such as "there's no charge unless we win your case" or "you pay us only when we win" violate DR 2-101(E)(1)(c) because they communicate that litigation costs the public nothing, and that "no fee without recovery" or "you pay no fee unless you win," without an explanation about costs, similarly mislead, since laypeople may not distinguish legal fees from costs. It grounded this in the Ohio and U.S. Supreme Court decisions in Zauderer and in Disciplinary Counsel v. Shane, where lawyers were reprimanded for such advertisements.

The Board explained the rule sets two obligations: to advise that the client may be liable for costs and expenses, and to disclose whether percentages are figured before or after costs. It suggested that statements like "contingent fee clients are responsible for costs and expenses of litigation" and "contingent fee percentages are computed before (or after) deduction of costs and expenses" would suffice, and noted that a lawyer who does not want to make these statements may simply not advertise contingent fees.

Currency note

The Ohio Board flags this opinion as "Withdrawn" by Opinion 2017-1 (April 7, 2017) and as "Not current" because of subsequent amendments to DR 5-103(B) effective June 14, 1999. It interpreted the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.

This opinion issued in 1998, before those changes. Subsequent rule amendments and the Board's withdrawal may have changed the analysis, including the rules governing lawyer advertising. Treat this page as historical context, not current guidance.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: Could a lawyer advertise "you pay us only when we win"?

A: No. The opinion concluded that such phrases violate DR 2-101(E)(1)(c) because they imply litigation costs the client nothing if the case is lost.

Q: Could a lawyer say "no fee unless you win" at all?

A: Only with disclosure. The opinion concluded that such a statement is improper unless the lawyer also discloses that contingent-fee clients are responsible for costs and expenses and whether percentages are figured before or after costs.

Q: What if a lawyer did not want to add those disclosures?

A: The opinion concluded that a lawyer who does not wish to make the required statements has the alternative of not mentioning contingent fees in the advertisement.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility DR 2-101(E)(1)(c) (required disclosures in contingent-fee advertising) and DR 5-103(B) (client's ultimate liability for litigation expenses), as applied in the Zauderer and Shane disciplinary decisions.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 2-101(E)(1)(c), DR 5-103(B)

Cases:

• Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44 (1984), aff'd Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), contingent-fee advertising
• Disciplinary Counsel v. Shane, 81 Ohio St. 3d 494 (1998), "no charge unless we win" television ads

See also

• Ohio BPC Op. 1998-001: Lawyer-Owned For-Profit Group Legal Services Plan

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-98-009.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 98-9
Issued June 5, 1998
Withdrawn by Adv. Op. 2017-01
[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 5-103(B), eff. Jun. 14, 1999.]

SYLLABUS: It is improper under DR 2-101(E)(1)(c) for a lawyer who advertises regarding continent fees to use statements such as “There’s no charge unless we win your case” or “You pay us only when we win” or any other phrase creating the expectation that it costs a client nothing to litigate when there is no recovery. It is also improper under DR 2-101(E)(1)(c) to advertise “No fee without recovery” or “You pay no fee unless you win” unless the attorney adds the additional information required under DR 2- 101(E)(1)(c). A lawyer who advertises regarding contingent fees has an obligation under the rule to advise the public that contingent fee clients are responsible for costs and expenses of litigation and to disclose whether percentages are computed before or after deduction of costs and expenses. Thus, for example, if a lawyer wishes to state “You pay no legal fees unless you win,” the lawyer must also state “Contingent fee clients are responsible for costs and expenses of litigation” and “Contingent fee percentages are computed before (or after) deduction of costs and expenses” or make other similar statements that fulfill the attorney’s obligations under the rule.

OPINION: This opinion addresses a question regarding the advertising of contingent fee arrangements.

Is it proper for a lawyer who advertises to use statements such as “No fee without recovery” or “You pay no fee unless you win” or “There’s no charge unless we win your case” or “You pay us only when we win”?

Creating the expectation that it costs a client nothing to litigate is wrong. Under DR 5- 103(B) of the Ohio Code of Professional Responsibility, a lawyer may advance or guarantee the expenses of litigation, “provided the client remains ultimately liable for such expenses.” Under DR 2-101(E)(1), this obligation must be revealed by the lawyer in the advertising of contingent fees.

DR 2-101(E)(1) Any of the following information with regard to fees and charges, if presented in a dignified manner, is acceptable for communication to the public in the manner stipulated by DR 2-101(B):

(c) Contingent fee rates, subject to DR-106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs and
expenses and advises the public that, in the event of an adverse verdict or decision, the contingent fee litigant could be liable for payment of court costs, expenses of investigation, expenses of medical examinations, and costs incurred in obtaining and presenting evidence; [Emphasis added].

Statements such as “There’s no charge unless we win your case” or “You pay us only when we win” violate DR 2-101(E)(1)(c). These statements contradict the rule. Rather than advising the public that in the event of an adverse verdict or decision the contingent fee litigants are liable for payment of costs and expenses, such statements in essence communicate that it won’t cost the public a dime to litigate. Statements such as “No fee without recovery” or “You pay no fee unless you win” without explanation regarding payment of costs also indicate that a client would not pay anything to litigate. Although attorneys know that legal fees are different from costs and expenses, the public may not. Therefore, the rule requires more disclosure.

Attorneys should be aware that this “won’t cost you a dime” approach is not acceptable in Ohio. In Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44 (1984), an attorney was publicly reprimanded for newspaper advertising that included the statement “If there is no recovery, no legal fees are owed by our clients.” That sanction was upheld by the Supreme Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). “The advertisement makes no mention of the distinction between ‘legal fees’ and ‘costs,’ and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing cause would come entirely free of charge.” Zauderer, 471 U.S. at 652.

In Disciplinary Counsel v. Shane, 81 Ohio St. 3d 494 (1998), two attorneys were publicly reprimanded for advertising on television “[T]here’s no charge unless we win your case. What could be fairer?” “This case needs tons of research and we told him there’s no fee unless we win.” “[W]e only charge if we win.* * * We always work that way.” “[R]emember, you pay us only when we win. What could be fairer?” According to the court, the advertisement in Shane suffered from the same deficiency as the advertisement in Zauderer. “The commercials do not inform the public that, win or lose, clients who enter contingent fee contracts are responsible for costs and expenses of their cases.” Shane, 81 Ohio St. 3d at 497. The court offered the following advice to all members of the bar. “In imposing this sanction we are also informing all members of the profession that such advertisements, whether in newspapers, on television, or in the ‘yellow pages,’ are improper and should be either withdrawn or modified as soon as feasible to conform with this decision.” Shane, 81 Ohio St. 3d at 498.

DR 2-101(E) actually sets forth two obligations. One obligation is addressed above—to advise the public that a contingent fee litigant may be liable for paying costs and expenses of litigation. The other obligation is to disclose whether percentages are computed before or after deduction of costs and expenses. That obligation was not at issue in the Shane case. These obligations under DR 2-101(E) should be met by attorneys whenever statements regarding contingent fees are made in advertising.

To alleviate attorneys’ concerns regarding what must be said, the Board suggests that statements such as “contingent fee clients are responsible for costs and expenses of litigation” and “contingent fee percentages are computed before (or after) deduction of costs and expenses” would suffice, without quoting the entire language of the rule within the advertisement. This or similar language would alert the public to the fact that there are litigation costs and expenses even in contingent fee contracts and would inform them of whether the attorney’s percentage would be computed prior to or after costs and expenses are deducted.

If attorneys find these statements too cumbersome, they have the alternative of not mentioning contingent fees in the advertisement. Attorneys who advertise their services have a choice. If contingent fee arrangements are mentioned, then the attorney has the obligation under the rule to make the required statements. If the attorney does not wish to make these statements, then the attorney should not advertise regarding contingent fees.

In conclusion, this Board advises that it is improper under DR 2-101(E)(1)(c) for a lawyer who advertises regarding continent fees to use statements such as “There’s no charge unless we win your case” or “You pay us only when we win” or any other phrase creating the expectation that it costs a client nothing to litigate when there is no recovery. It is also improper under DR 2-101(E)(1)(c) to advertise “No fee without recovery” or “You pay no fee unless you win” unless the attorney adds the additional information required under DR 2-101(E)(1)(c). A lawyer who advertises regarding contingent fees has an obligation under the rule to advise the public that contingent fee clients are responsible for costs and expenses of litigation and to disclose whether percentages are computed before or after deduction of costs and expenses. Thus, for example, if a lawyer wishes to state “You pay no legal fees unless you win,” the lawyer must also state “Contingent fee clients are responsible for costs and expenses of litigation” and “Contingent fee percentages are computed before (or after) deduction of costs and expenses” or make other similar statements that fulfill the attorney’s obligations under the rule.

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.