Can an Ohio lawyer hand out law firm brochures in person at a street corner, fair, or festival?

Plain-English summary

The Board addressed whether a lawyer may personally distribute law firm brochures to the public at events such as a street corner, a fair, or a church festival, and whether the lawyer may direct another person to do so. It started from DR 2-101(B)(3), which permits brochures to be "disseminated directly" but does not specify the permitted methods, and from DR 2-101(F)(1), which prohibits in-person solicitation of legal business except as allowed by DR 2-103 and DR 2-104.

The Board concluded that "disseminated directly" does not mean unrestrained in-person distribution. It reasoned that having a brochure in hand does not neutralize the in-person interaction between the lawyer and the recipient, so hand-to-hand distribution at a street corner, fair, or festival is the kind of in-person solicitation DR 2-101(F)(1) intends to prohibit. It further concluded that a lawyer may not direct another individual to do this on the lawyer's behalf, because DR 1-102(A)(2) prohibits circumventing a disciplinary rule through the acts of another.

The Board emphasized that its advice should be read in context with the rest of the Code. It explained that "disseminated directly" still permits many other methods: giving a brochure to a client or to a person who asks for one; mailing brochures to the general public; including a brochure in a compliant direct-mail solicitation; placing brochures in counter displays at events or in business offices without an improper referral relationship; and cooperating with permitted activities of DR 2-103(D)(1) through (4) organizations. The Board cited Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), and related cases distinguishing in-person solicitation from print and targeted-mail advertising.

Currency note

The Board's status list flags this opinion as a CPR Opinion that provides advice under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.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 1999, before that revision. The DR 2-101 solicitation provisions discussed here have been replaced by Ohio Prof. Cond. R. 7.3. Treat this page as historical context, not current guidance. Verify against the current Ohio rules before relying on any specific provision mentioned here.

Common questions

Q: Could an Ohio lawyer personally hand out firm brochures at a fair or street corner?

A: No. The opinion concluded that personal distribution of brochures to the public at such events is prohibited in-person solicitation under DR 2-101(F)(1).

Q: Could a lawyer have an employee or other person hand out the brochures instead?

A: No. The opinion concluded that directing another person to do so is improper under DR 2-101(F)(1) and DR 1-102(A)(2), which bars circumventing a rule through another's acts.

Q: What brochure distribution methods remained permissible?

A: The opinion stated that giving a brochure to a client or to someone who asks, mailing brochures, including them in compliant direct-mail solicitations, and using counter displays without an improper referral relationship were not per se improper.

Q: Why is handing out a brochure treated as solicitation when mailing it is not?

A: The opinion reasoned that the in-person interaction between lawyer and recipient is what the rule targets; having a brochure in hand does not remove that interaction, whereas mailed or displayed brochures do not involve it.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 2-101(B)(3) (dissemination of brochures), DR 2-101(F)(1) (prohibition on in-person solicitation), and DR 1-102(A)(2) (circumventing a rule through another), provisions now addressed by Ohio Prof. Cond. R. 7.3 (Model Rule 7.3) and Rule 8.4(a).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 2-101(B)(1), DR 2-101(B)(3), DR 2-101(F)(1), DR 2-101(F)(2), DR 2-103, DR 2-104, DR 1-102(A)(2)

Cases:

• Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), in-person solicitation for pecuniary gain may be disciplined
• In re Primus, 436 U.S. 412 (1978), political expression and association require greater precision
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), in-person solicitation distinguished from print advertising
• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988), in-person solicitation distinguished from targeted direct mail

See also

• Ohio BPC Op. 1990-021: Targeted Direct-Mail Solicitation
• Ohio BPC Op. 1990-002: Telemarketing Solicitation of Clients
• Ohio BPC Op. 1988-003: Legal Aid Lawyer Direct-Mail Solicitation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-99-005.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 99-5

[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: It is improper under DR 2-101(F)(1) of the Ohio Code of Professional Responsibility for a lawyer to personally distribute law firm brochures at a street corner, at a booth at a fair, at a church festival, or at other similar events. It is improper under DR 2-101(F)(1) and DR 1-102(A)(2) for a lawyer to direct another individual to personally distribute on his or her behalf law firm brochures at a street corner, at a fair, at a church festival, or at other similar events.

The advice within this opinion should not be taken out of context; rather, it should be tempered with an understanding of all the rules within the Code. For example, there would be nothing per se improper about a lawyer giving a brochure in person to a client or to a person who asks for a brochure. There would be nothing improper about a brochure being mailed to the general public. There would be nothing per se improper about a brochure being included in a direct mail solicitation in compliance with the rules. There would be nothing per se improper about a law firm brochure appearing in a counter display at a fair, church festival or other similar event. There would be nothing improper per se about a law firm brochure appearing in a counter display of a business or professional office provided there was no improper referral relationship. There would be nothing per se improper about a lawyer cooperating with permitted activities of organizations identified in DR 2-103 (D)(1) through (4) that in some manner might involve the dissemination of brochures.

OPINION: This opinion addresses questions regarding the distribution of law firm brochures.

1. Is it proper for a lawyer to personally distribute law firm brochures at a street corner, at a booth at a fair, at a church festival, or at other similar events?

2. Is it proper for a lawyer to direct another individual to personally distribute law firm brochures at a street corner, at a fair, at a church festival, or at other similar events?

Advertising is an acknowledged way of informing the public as to the availability of legal services. Canon 2 of the Ohio Code of Professional Responsibility broadly proclaims that “A LAWYER SHOULD ASSIST THE LEGAL PROFESSION IN FULFILLING ITS DUTY TO MAKE LEGAL COUNSEL AVAILABLE.” Ethical Consideration 2-9
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informs lawyers that “the Disciplinary Rules recognize the value of giving assistance in the selection process through forms of advertising.”

A brochure is a form of advertisement permitted under the Ohio Code of Professional Responsibility.

DR 2-101(B) Subject to the limitations contained in these rules:

(3) Brochures or pamphlets containing biographical data and informational data that is acceptable under these rules may be disseminated directly to clients, members of the bar, or others.

The rule provides that brochures may be “disseminated directly” but the rule does not specify the permitted methods of dissemination. Other rules within the Code provide guidance.

DR 2-101(F)(1) prohibits in-person solicitation. When a lawyer stands at a street corner, at a booth at a fair, at a church festival, or at a similar event and passes out law firm brochures to the general public, is that a dissemination permitted under DR 2-101(B)(3) or is it a form of in-person solicitation prohibited under DR 2-101(F)(1)?

DR 2-101(F)(1) A lawyer shall not make any solicitation of legal business in person or by telephone, except as provided in DR 2-103 and DR 2-104.

A summary of the DR 2-103 and DR 2-104 exceptions to in-person solicitation is as follows: DR 2-103 [lawyer may request referrals from a lawyer referral service]; DR 2- 104 [a lawyer who gives unsolicited advice to a non-lawyer may not accept employment resulting from that advice except for: employment by a close friend, relative, former client, or client; employment that results from participation in the activities of a DR 2- 103(D)(1) through (4) organizations; employment that results from public speaking or writing for publication; employment that results from those contacted for the purpose of obtaining their joinder in a class action.] In counterbalance, DR 2-104(B) states that “[n]othing in this rule [DR 2-104] prohibits a lawyer from accepting employment received in response to the lawyer’s own advertising, provided the advertising is in compliance with DR 2-101.”

In this Board’s view “disseminated directly” does not mean unrestrained in-person distribution. The fact that the attorney has a brochure in hand does not neutralize or nullify the occurrence of the in-person interaction between the lawyer and the recipient of the brochure. In-person distribution of a law firm brochure by a lawyer to members of the public at a street corner, at a booth at a fair; at a church festival, or at a similar event is a form of in-person solicitation that DR 2-101(F)(1) intends to prohibit. Further, a lawyer should not direct another individual to personally distribute on his or her behalf law firm brochures at a street corner, at a fair, at a church festival, or at other similar events because DR 1-102(A)(2) prohibits a lawyer from circumventing a disciplinary rule through the actions of another.
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Nevertheless, based upon other rules within the Code, it is the Board’s view that “disseminated directly” encompasses and permits a wide variety of other types of distribution. Under DR 2-101(B)(1) “[a] lawyer or law firm may advertise services through newspapers, periodicals, trade journals, ‘shoppers,’ and similar print media, outdoor advertising, radio and television, and written communication.” Brochures could be included in an advertising bag along with other advertisements for distribution on doorsteps of homes and businesses. Brochures could be mailed to the general public. Brochures could be included in an envelope along with direct mail solicitation letters provided that the letters are in compliance with DR 2-101(F)(2). Brochures could be disseminated in counter displays at public places as well as private businesses provided there are no relationships involving improper compensation or rewards for referrals of clients. These methods of dissemination do not involve in-person solicitation.

For case law addressing in-person solicitation see Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 449 (1978), (holding that “the State--or the Bar acting with state authorization-- constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.”); In re Primus, 436 U.S. 412, 437-38 (1978) (stating that “[i]n the context of political expression and association, however, a State must regulate with significantly greater precision”; Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 641-42 (1985) (distinguishing features of in-person solicitation from print advertising ) and Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 474-77 (1988) (distinguishing features of in-person solicitation from targeted direct mail solicitation).

In conclusion, the Board advises that it is improper under DR 2-101(F)(1) of the Ohio Code of Professional Responsibility for a lawyer to personally distribute law firm brochures at a street corner, at a booth at a fair, at a church festival, or at other similar events. It is improper under DR 2-101(F)(1) and DR 1-102(A)(2) for a lawyer to direct another individual to personally distribute law firm brochures at a street corner, at a fair, at a church festival, or at other similar events.

The advice within this opinion should not be taken out of context; rather, it should be tempered with an understanding of all the rules within the Code. For example, there would be nothing per se improper about a lawyer giving a brochure in person to a client or to a person who asks for a brochure. There would be nothing improper about a brochure being mailed to the general public. There would be nothing per se improper about a brochure being included in a direct mail solicitation in compliance with the rules. There would be nothing per se improper about a law firm brochure appearing in a counter display at a fair, church festival or other similar event. There would be nothing improper per se about a law firm brochure appearing in a counter display of a business or professional office provided there was no improper referral relationship. There would be nothing per se improper about a lawyer cooperating with permitted activities of organizations identified in DR 2-103 (D)(1) through (4) that in some manner might involve the dissemination of brochures.

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
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Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney’s Oath of Office.