Can an Ohio lawyer send unsolicited email advertising legal services, and what rules apply?
Ohio BPC Opinion 2004-001: Unsolicited E-Mail Advertising of Legal Services as Targeted Direct Mail
Short answer: The opinion concluded that unsolicited email advertising of legal services is discouraged but not barred, and is treated as targeted direct mail subject to the direct-mail restrictions of DR 2-101.
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.
Currency note
This opinion was issued in 2004, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007). The Board flagged it as a "CPR Opinion" because it interprets the former Ohio Code of Professional Responsibility, since superseded. Lawyer advertising and direct solicitation are now governed by Ohio Prof. Cond. R. 7.1 and 7.3, whose terms differ from the DR 2-101 provisions discussed here. Treat this page as historical context, not current guidance. Verify against current rules and applicable federal and state law before relying on any specific rule or requirement mentioned here.
Plain-English summary
The Board addressed whether an attorney may advertise legal services through unsolicited email to potential clients. Because the former Code of Professional Responsibility did not yet have rules specifically on email advertising, the Board concluded that attorneys are discouraged from, but not barred from, the practice. An attorney who proceeds must satisfy the existing advertising rules and applicable federal and state law, and the Board treated unsolicited email advertising as a form of targeted direct mail subject to DR 2-101(F)(2), DR 2-101(F)(4), and DR 2-101(H)(1).
The Board applied the direct-mail requirements with practical adjustments for the email medium. The DR 2-101(F)(2) restrictions apply whether or not the recipient has a specific legal need known to the sender. Because email has no envelope on which to place the required "ADVERTISEMENT ONLY" recital, that language should appear on the subject line and in the text of the email; it should be in at least the required 10-point type and in red ink, but customary black type will suffice if red is not possible. Under DR 2-101(F)(4), if the attorney knows the prospective client is a defendant in a civil action, the attorney must first meet that subsection's requirements before sending. Under DR 2-101(H)(1), if the attorney knows the email is directed to a prospective client or a relative within thirty days of an accident or disaster giving rise to a potential personal-injury or wrongful-death claim, the attorney must satisfy that subsection. The Board added that attorneys should provide an opt-out and should not send further unsolicited email to recipients who ask not to receive it.
Common questions
Q: Can an Ohio lawyer send unsolicited marketing email to potential clients?
A: The opinion concluded the practice is discouraged but not barred, provided the lawyer follows the existing advertising rules treating it as targeted direct mail and complies with federal and state law.
Q: Does the "ADVERTISEMENT ONLY" label requirement apply to email?
A: Yes. Per the opinion, because there is no envelope, the recital should appear on the subject line and in the text, in at least 10-point type, in red ink where possible and otherwise in black.
Q: Are there extra limits for accident victims or civil defendants?
A: Yes. The opinion applied DR 2-101(H)(1) (email within thirty days of an accident or disaster) and DR 2-101(F)(4) (recipient known to be a civil defendant), each of which imposes added requirements before sending.
Background and rules framework
The opinion interprets the former Ohio Code of Professional Responsibility direct-mail advertising provisions, DR 2-101(F)(2), DR 2-101(F)(4), and DR 2-101(H)(1), as applied to unsolicited email, together with applicable federal and state law on commercial email. Lawyer advertising and solicitation are now governed by Ohio Prof. Cond. R. 7.1 and 7.3 (Model Rules 7.1 and 7.3).
Citations and references
Rules of Professional Conduct:
- Former Ohio Code of Professional Responsibility DR 2-101(F)(2), DR 2-101(F)(4), DR 2-101(H)(1)
- Current analogues: Ohio Prof. Cond. R. 7.1, 7.3 (Model Rules 7.1, 7.3)
See also
- Ohio BPC Op. 2001-002: Commercial Website Attorney Listings: Advertising vs. Referral
- Ohio BPC Op. 2000-006: Client Testimonials, Client Names, and Case Links on a Law Firm Web Site
- Ohio BPC Op. 2002-007: Advertising Past Settlement or Verdict Amounts
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-04-001.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 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2004-1
Issued February 13, 2004
Withdrawn by Adv. Op. 2017-3
[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: Until ethical rules, specifically addressing unsolicited e-mail advertising
of legal services, are set forth in the Ohio Code of Professional Responsibility, attorneys
are discouraged from, but not barred from, advertising their legal services through
unsolicited e-mails to potential clients. If an attorney proceeds with sending unsolicited
e-mail advertising of legal services, the existing advertising rules in the Ohio Code of
Professional Responsibility (DR 2-101 through DR 1-105) will apply, as will applicable
federal and state laws. As to the Ohio Code of Professional Responsibility, the
advertising of legal services through unsolicited e-mail constitutes targeted direct mail,
subject to the restrictions set forth in DR 2-101(F)(2), DR 2-101(F)(4), DR 2-101(H)(1).
The direct mail restrictions imposed under DR 2-101(F)(2) apply regardless of whether or
not the e-mail recipient has a specific legal need known to the sender/attorney. Specific
requirements of the DR 2-101(F)(2) must be applied with reason. For example, since
there is no envelope on which to place the required DR 2-101(F)(2)(e) recital
“ADVERTISEMENT ONLY” this language should be placed on the Subject Line of the
e-mail as well as in the text of the e-mail. This language should appear in no smaller than
the required 10 Point type and in red ink, but if not possible, customary black type will
suffice on the e-mail subject line and in the e-mail text for the “ADVERTISEMENT
ONLY” recitals. Under DR 2-101(F)(4), if an attorney knows that the prospective client
is a defendant in a civil action, the lawyer must first satisfy the requirements of DR 2-
101(F)(4) before sending the e-mail. Under DR 2-101(H)(1), if an attorney knows that e-
mail is directed to a prospective client or a relative of a prospective client within thirty
days of an accident or disaster that gives rise to a potential claim for personal injury or
wrongful death, the attorney must satisfy the requirements of DR 2-101(H)(1) in the e-
mail. Attorneys should provide a method for the recipient to opt out of receiving further
e-mail. If recipients ask not to receive e-mail, attorneys should not send them any
unsolicited e-mail advertising legal services. Unsolicited e-mail advertising of legal
services should comply with applicable federal and state law with which attorneys should
be knowledgeable.
Attorneys may participate in lawyer advertising services or lawyer referral services that
send unsolicited commercial e-mails advertising legal services to potential clients, but are
Op. 2004-1 2
discouraged from doing so until ethical rules specifically addressing unsolicited e-mail
advertising of legal services are set forth in the Ohio Code of Professional Responsibility.
In the meantime, if an attorney participates in a lawyer advertising service that sends
unsolicited commercial e-mail, the attorney should review the e-mail advertising to
determine compliance with existing advertising rules and applicable law. If a lawyer
participates in a lawyer referral service, the lawyer should review whether the referral
service conforms to DR 2-103(C) of the Ohio Code of Professional Responsibility and to
the Regulations of the Lawyer Referral and Information Services Committee of the
Supreme Court of Ohio. In the absence of a rule or regulation that exempts lawyer
referral services from compliance with lawyer advertising rules, the Board suggests that
e-mail advertisements of lawyer referral services should conform to the lawyer
advertising rules set forth in the Ohio Code of Professional Responsibility.
OPINION: This opinion addresses the use of unsolicited e-mail to advertise legal
services.
1. Is it proper for attorneys to advertise legal services by sending
unsolicited e-mails to potential clients?
2. Is it proper for attorneys to participate in lawyer advertising services or
lawyer referral services that send unsolicited e-mails to potential
clients?
The issues presented—an attorney, an advertising entity, or a referral entity sending
unsolicited e-mail advertising legal services to an individual or to hundreds or thousands
of prospective clients at once—is ripe for guidance in Ohio.
Question One
Is it proper for attorneys to advertise legal services by sending unsolicited e-
mails to potential clients?
Unsolicited commercial e-mail is controversial.
Anyone with an e-mail address is well familiar with unsolicited commercial e-mail.
Internet users and others refer to unsolicited commercial e-mail as “spam.”
Spam is unsolicited mail sent to hundreds, if not thousands, of users at
once. Spam messages are usually advertisements for things you don’t
want, including “get rich quick” schemes, “lose weight fast” come-ons,
invitations for adult services on the Internet, and programs to do
spamming yourself. Often the messages carry subjects to make you think
that the sender is someone you know (e.g., “See you tomorrow”), so you’ll
be sure to open the message.
Op. 2004-1 3
Spam is worse than post office junk mail for a couple of reasons. It costs
you money, since you have to download these messages and pay for the
connection time to the mail service. You don’t know it’s junk until you
read it. Most spammers hide their identity by sending out their junk using
someone else’s domain name as the return address, or even by accessing
that person’s mail server, so the spam cannot be traced back to them. One
day this unlucky person could be you!
Kenneth E. Johnson, American Bar Association Law Practice Management Section, The
Lawyer’s Quick Guide to E-mail 115 (1998).
Criticisms of unsolicited e-mail abound. Spamming is accused of causing slower e-mail
service, crashed servers, time wasted downloading unwanted e-mail, increased cost to
internet service providers who purchase more bandwidth to handle the volume of mail,
and increased cost to users when internet service providers raise prices for services.
Coalition Against Unsolicited Commercial Email at http://www.cauce.org (last visited
Jun. 17, 2003). Another concern with unsolicited commercial e-mail is that the content
may be objectionable to the receiver.
Spamming has occurred in the legal profession. By order of the Supreme Court of
Tennessee, an attorney received a one-year suspension for placing an advertisement that
appeared on computer screens unsolicited. The hearing panel found the posting violated
DR 2-101 and violated DR 1-102(A)(1)(5)(6). The attorney also received a disbarment
for other misconduct. See In re Canter, Docket Nos. 95-831-O-H, 96-868-O-H, 96-908-
O-H, 96-910- O-H, June 5, 1997.
There are laws regulating unsolicited commercial electronic mail.
On December 16, 2003, the President of the United States signed into law the
“Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” also
known as the “Can-Spam Act of 2003,” “15 U.S.C.A. § 7701-7713. (West 2004). Under
the law, predatory and abusive commercial e-mail is prohibited. 15 U.S.C.A. § 7703
(West 2004). Transmission of information that is false or materially misleading is
unlawful. 15 U.S.C.A. § 7704(a)(1) (West 2004). Deceptive subject headings are
prohibited. 15 U.S.C.A. § 7704(a)(2) (West 2004). The law requires a functioning return
electronic mail address that the recipient may use to submit, in a manner specified in the
message, a request not to receive further future commercial electronic messages from the
sender. 15 U.S.C.A. § 7704(a)(3) (West 2004). The law prohibits transmission of
commercial electronic mail after objections. 15 U.S.C.A. § 7704(a)(4) (West 2004). The
law requires the inclusion of an identifier as an advertisement or solicitation, an
opportunity to opt-out, and a valid physical address in the commercial electronic mail. 15
U.S.C.A. § 7704(a)(5) (West 2004). The law requires warning labels on commercial
electronic mail containing sexually oriented material. 15 U.S.C.A. §7704(d) (West
2004). The law prohibits a person from promoting a trade or business by electronic mail
with false or misleading transmission information. 15 U.S.C.A. § 7705 (West 2004).
Op. 2004-1 4
Since November 1, 2002, Ohio has regulated unsolicited commercial e-mail under
Section 2307.64 of the Ohio Revised Code. The Can-Spam Act “supersedes any statute,
regulation, or rule of a State or political subdivision of a State that expressly regulates the
use of electronic mail to send commercial messages, except to the extent that any such
statute, regulation, or rule prohibits falsity or deception in any portion of a commercial
electronic mail message or information attached thereto.” 15 U.S.C.A. §7707(b) (West
2004).
Advertising of legal services by attorneys, including e-mail advertising, is subject to
regulation by the Supreme Court of Ohio.
Attorney advertising is commercial speech protected by the First Amendment, but is
subject to regulation by the states. See Bates v. State Bar of Arizona, 433 U.S. 350, 363-
384 (1977), Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio,
471 U.S. 626, 637 (1985). “In holding that advertising by attorneys may not be subjected
to blanket suppression . . . we of course, do not hold that advertising by attorneys may not
be regulated in any way.” Bates, 433 U.S. at 383.
The Supreme Court of Ohio regulates attorney advertising through DR 2-101 to 2-105 of
the Ohio Code of Professional Responsibility. Because the Supreme Court of Ohio
adopted the rules prior to e-mail, there is no direct reference to e-mail.
In the absence of a rule specifically listing e-mail do’s and don’ts, attorneys have sought
guidance from the Board regarding the application of the rules. The Board’s view is that
the advertising rules apply to all forms of public communication by attorneys, including
e-mail. From the Board’s opinions, several guidelines are established.
A lawyer may communicate with established clients through e-mail. See
Ohio SupCt, Bd Comm’rs on Grievances & Discipline, Op. 99-2 (1999).
A lawyer may receive and respond to e-mail legal questions from visitors
to the law firm’s Web site. See Ohio SupCt, Bd Comm’rs on Grievances
& Discipline, Op. 99-9 (1999).
A lawyer may communicate by e-mail with other attorneys to express an
interest in serving as counsel in a matter. See Ohio SupCt, Bd Comm’rs
on Grievances & Discipline, Op. 2002-6 (2002).
E-mail solicitation of prospective clients known to have a legal need is
subject to regulation as direct mail solicitation under DR 2-101(F)(2), DR
2-101(F)(4), and DR 2-101(H)(1). (A lawyer may e-mail an out-of-state
corporate party to inquire whether the corporation is represented by
counsel, but must comply with direct mail solicitation restrictions as
completely as possible within the limits of the e-mail technology.) See
Op. 2004-1 5
Ohio SupCt, Bd Comm’rs on Grievances & Discipline, Op. 2002-6
(2002).
ABA has adopted a model rule regulating e-mail communications by attorneys.
American Bar Association Model Rule 7.3(c) requires “[e]very written, recorded or
electronic communication from a lawyer soliciting professional employment from a
prospective client known to be in need of legal services in a particular matter shall
include the words “Advertising Material” on the outside envelope, if any, and at the
beginning and ending of any recorded or electronic communication, unless the recipient
of the communication is a person specified in paragraphs (a)(1) [a lawyer] or (a)(2) [a
person with whom the lawyer has a family, close personal, or prior professional
relationship].
Some states have adopted specific rules regulating e-mail advertising of legal services.
For example, under Florida rules, an attorney may not send an unsolicited electronic mail
communication directly or indirectly to a prospective client unless certain conditions are
met, including a requirement that the subject line of the communication states “legal
advertisement.” See Florida Bar Rule 4-7.6(c). As another example, under Tennessee
rules, e-mail communication to a specifically identified recipient who has not initiated the
contact with the lawyer and who has no family or other prior professional relationship
must comply with restrictions that include marking “This is an Advertisement” at the
beginning and end of the written material. Tennessee SupCt Rule 7.3(c)(1).
Some states have provided guidance through advisory opinions treating unsolicited e-
mail from attorneys to prospective clients in a manner similar to direct mail
communication. See e.g., Arizona State Bar, Op. 97-04 (1997); Pa Bar Assn, Op. 97-130
(1997); Utah State Bar, Op. 97-10 (1997).
E-mail is a unique form of communication, but like other forms of publicity must comply
with the lawyer advertising rules set forth in the Ohio Code of Professional
Responsibility.
An e-mail travels to an electronic mail address. Each electronic mail address is unique.
When a person receives an e-mail addressed to his or her electronic mail address, the
person is a direct target of the sender.
Like other forms of lawyer publicity, a lawyer’s e-mail advertising legal services must
conform to the existing advertising rules, DR 2-101 through DR 2-105 of the Ohio Code
of Professional Responsibility. It is the Board’s view that the advertising of legal
services through unsolicited e-mail constitutes targeted direct mail advertising, subject to
the restrictions set forth in DR 2-101(F)(2), DR 2-101(F)(4), and DR 2-101(H)(1). DR 2-
101(F)(2) requires that certain conditions must be fulfilled, such as including
“Advertisement Only” in the text and on the envelope. DR 2-101(F)(4), requires that
prior to sending a solicitation to a defendant in a civil action the attorney verify service
Op. 2004-1 6
on the defendant. DR 2-101(H)(1) imposes a thirty day waiting period before sending a
solicitation to a prospective client or relative of a client involved in an accident or
disaster that gives rise to a potential claim for personal injury or wrongful death.
It will require effort by attorneys to apply the direct mail restrictions to e-mail
communication advertising legal services to prospective clients. As to DR 2-101(F)(2),
the Board has already advised: “Since there is no envelope on which to place the
required DR 2-101(F)(2)(e) recital ‘ADVERTISEMENT ONLY,’ it will satisfy the rule
to place this language on the Subject Line of the e-mail as well as in the text of the e-
mail. If possible, this language should appear in no smaller than 10 Point type and in red
ink. If it is not possible, customary black type will suffice on the e-mail subject line and
in the e-mail text for the ‘ADVERTISEMENT ONLY’ recitals.” Ohio SupCt, Bd
Comm’rs on Grievances & Discipline, Op. 2002-6 (2002). As to DR 2-101(F)(4), a
lawyer using a broad database of e-mail addresses may have little way of knowing
whether an e-mail address will go to a defendant who has not been served in a civil
action. Similarly, as to DR 2-101(H)(1), a lawyer using a broad database of e-mail
addresses may have little way of knowing whether an e-mail address will go to a
prospective client or relative of a client within a thirty-day period following an accident
or disaster that gives rise to a potential claim for personal injury or wrongful death.
Nevertheless, an attorney should use due diligence to avoid sending e-mail not in
compliance with these rules, as well as all the other rules governing advertising.
In conclusion, the Board advises as follows. Until ethical rules, specifically addressing
unsolicited e-mail advertising of legal services, are set forth in the Ohio Code of
Professional Responsibility, attorneys are discouraged from, but not barred from,
advertising their legal services through unsolicited e-mails to potential clients. If an
attorney proceeds with sending unsolicited e-mail advertising of legal services, the
existing advertising rules in the Ohio Code of Professional Responsibility (DR 2-101
through DR 1-105) will apply, as will applicable federal and state laws. As to the Ohio
Code of Professional Responsibility, the advertising of legal services through unsolicited
e-mail constitutes targeted direct mail, subject to the restrictions set forth in DR 2-
101(F)(2), DR 2-101(F)(4), DR 2-101(H)(1). The direct mail restrictions imposed under
DR 2-101(F)(2) apply regardless of whether or not the e-mail recipient has a specific
legal need known to the sender/attorney. Specific requirements of the DR 2-101(F)(2)
must be applied with reason. For example, since there is no envelope on which to place
the required DR 2-101(F)(2)(e) recital “ADVERTISEMENT ONLY” this language
should be placed on the Subject Line of the e-mail as well as in the text of the e-mail.
This language should appear in no smaller than the required 10 Point type and in red ink,
but if not possible, customary black type will suffice on the e-mail subject line and in the
e-mail text for the “ADVERTISEMENT ONLY” recitals. Under DR 2-101(F)(4), if an
attorney knows that the prospective client is a defendant in a civil action, the lawyer must
first satisfy the requirements of DR 2-101(F)(4) before sending the e-mail. Under DR 2-
101(H)(1), if an attorney knows that e-mail is directed to a prospective client or a relative
of a prospective client within thirty days of an accident or disaster that gives rise to a
potential claim for personal injury or wrongful death, the attorney must satisfy the
Op. 2004-1 7
requirements of DR 2-101(H)(1) in the e-mail. Attorneys should provide a method for
the recipient to opt out of receiving further e-mail. If recipients ask not to receive e-mail,
attorneys should not send them any unsolicited e-mail advertising legal services.
Unsolicited e-mail advertising of legal services should comply with applicable federal
and state law with which attorneys should be knowledgeable.
Question Two
Is it proper for attorneys to participate in lawyer advertising services or
lawyer referral services that send unsolicited commercial e-mails to
potential clients?
As already stated, attorneys are not prohibited by the Ohio Code of Professional
Responsibility from advertising legal services by sending unsolicited e-mails to potential
clients. Further, there is no ban in the Ohio Code of Professional Responsibility on
attorneys participating in lawyer advertising services or lawyer referral services that send
unsolicited commercial e-mail to potential clients.
Thus, the Board advises as follows. Attorneys may participate in lawyer advertising
services or lawyer referral services that send unsolicited commercial e-mails advertising
legal services to potential clients, but are discouraged from doing so until ethical rules
specifically addressing unsolicited e-mail advertising of legal services are set forth in the
Ohio Code of Professional Responsibility. In the meantime, if an attorney participates in
a lawyer advertising service that sends unsolicited commercial e-mail, the attorney should
review the e-mail advertising to determine compliance with existing advertising rules and
applicable law. If a lawyer participates in a lawyer referral service, the lawyer should
review whether the referral service conforms to DR 2-103(C) of the Ohio Code of
Professional Responsibility and to the Regulations of the Lawyer Referral and
Information Services Committee of the Supreme Court of Ohio. In the absence of a rule
or regulation that exempts lawyer referral services from compliance with lawyer
advertising rules, the Board suggests that e-mail advertisements of lawyer referral
services should conform to the lawyer advertising rules set forth in the Ohio Code of
Professional Responsibility.
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.