Can an Ohio lawyer send unsolicited emails to get clients, and what disclosures must the email carry?

Plain-English summary

The Board addressed whether a lawyer may advertise by sending unsolicited emails, and whether a lawyer may use a referral or advertising service that does so. On the first question, it explained that Prof. Cond. R. 7.3 bars in-person, live-telephone, and real-time electronic solicitation (to guard against undue influence, intimidation, and overreaching), but that less direct written, recorded, or electronic communications are permitted. Because Rule 1.0(p) defines "written" to include electronic communications and Rule 7.3(b) comment [3] treats email as not involving real-time contact, email solicitation is expressly permitted.

The Board then set out the conditions. The content must comply with Prof. Cond. R. 7.1's prohibition on false, misleading, or nonverifiable communications. Under Rule 7.3(b), solicitation in any form is not allowed if the recipient has made known they do not wish to be contacted, or if it involves coercion, duress, or harassment, or where the lawyer knows or should know the person is a minor, incompetent, or unable to exercise reasonable judgment; repeated emails after no response may implicate the rule. Rule 7.3(c) requires every such written, recorded, or electronic solicitation to disclose accurately how the lawyer learned of the recipient's identity and specific legal need, to refrain from a predetermined evaluation of the merits, and to conspicuously include "ADVERTISING MATERIAL" or "ADVERTISEMENT ONLY" at the beginning and end (the recital in the subject line satisfies the "beginning" requirement). The Board also noted the Rule 7.3(d), (e) requirements on verifying service and including the "Understanding Your Rights" statement in the body of the email (not an attachment or hyperlink), per Adv. Op. 2013-2.

The Board added legal considerations beyond the rules: email solicitation must not violate other laws governing solicitation, including the federal CAN-SPAM Act and Ohio's commercial-email statute, R.C. 2307.64. On the second question, the Board concluded a lawyer may let a referral or advertising service transmit a solicitation email, but Prof. Cond. R. 5.3 makes the lawyer responsible for ensuring the service's compliance, so the lawyer should review the email's content. The opinion updated and withdrew former Opinion 2004-1.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, email is a permissible solicitation method because it is written communication outside the real-time contact Rule 7.3 prohibits. Per the opinion, the email must comply with Prof. Cond. R. 7.1-7.3, including the Rule 7.3(c) disclosures (how the lawyer learned of the need, no predetermined merits evaluation, the "ADVERTISING MATERIAL" or "ADVERTISEMENT ONLY" recital at the beginning and end) and the Rule 7.3(d)-(e) requirements, and must comply with other laws such as CAN-SPAM and R.C. 2307.64. The opinion further holds that a lawyer who uses a referral or advertising service to send the email remains responsible for its content under Rule 5.3 and should review it.

Common questions

Q: Can a lawyer send unsolicited emails to solicit clients?

A: The opinion concluded yes; email is a written communication that does not involve the real-time contact Prof. Cond. R. 7.3 prohibits, so it is permitted subject to Rules 7.1-7.3.

Q: What must the solicitation email include?

A: The opinion concluded that under Rule 7.3(c) it must disclose how the lawyer learned of the recipient's need, avoid a predetermined evaluation of the merits, and conspicuously include "ADVERTISING MATERIAL" or "ADVERTISEMENT ONLY" at the beginning and end.

Q: Are there limits on whom a lawyer may email?

A: The opinion concluded the lawyer may not email someone who has said they do not want contact, or use coercion or harassment, or solicit a person the lawyer knows or should know is a minor, incompetent, or unable to exercise reasonable judgment; repeated emails after no response may implicate Rule 7.3(b).

Q: Is a lawyer responsible if a referral service sends the email?

A: The opinion concluded yes; under Prof. Cond. R. 5.3 the lawyer is responsible for the service's compliance and should review the email's content.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 7.3 (direct contact with prospective clients; solicitation), including 7.3(b), (c), (d), (e) and comments [1]-[3], [6], together with Rule 7.1 (communications concerning a lawyer's services), Rule 7.2 (advertising), the "written" definition in Rule 1.0(p), and the supervisory-responsibility rule 5.3 (Model Rules 7.3, 7.1, 7.2, 1.0, 5.3). It also references the federal CAN-SPAM Act and R.C. 2307.64 on commercial email.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 7.3 (direct contact; solicitation), incl. 7.3(b)-(e) and cmts. [1]-[3], [6] (Model Rule 7.3)
• Ohio Prof. Cond. R. 7.1 (communications concerning a lawyer's services), incl. cmts. [3]-[5] (Model Rule 7.1)
• Ohio Prof. Cond. R. 7.2 (advertising) (Model Rule 7.2)
• Ohio Prof. Cond. R. 1.0(p) (definition of "written") (Model Rule 1.0)
• Ohio Prof. Cond. R. 5.3 (responsibilities regarding nonlawyer assistance) (Model Rule 5.3)

Statutes:

• CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act, 2003)
• R.C. 2307.64 (Ohio regulation of commercial email)

Other opinions cited:

• Ohio BPC Adv. Op. 2013-2: "Understanding Your Rights" statement in solicitations

See also

• Ohio BPC Op. 2004-001: Unsolicited Email Advertising as Direct Mail (withdrawn by this opinion)
• Ohio BPC Op. 2013-002: Direct Contact With Prospective Clients by Text Message
• Ohio BPC Op. 2015-002: Direct In-Person Solicitation of Prospective Clients at Seminars

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/05/Op_17-003.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION 2017-03
Issued April 7, 2017
(Update and Withdrawal of Former Opinion 2004-1)

Solicitation of Professional Employment Via Email

SYLLABUS: A lawyer may use email to solicit professional employment, subject to the restrictions contained in the Rules of Professional Conduct concerning lawyer communications and solicitation.

A lawyer may allow a lawyer referral service or a lawyer advertising service to transmit a solicitation email on the lawyer’s behalf. However, the lawyer remains responsible for the content of the email and must ensure that the communication complies with the Rules of Professional Conduct.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct.
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431 Telephone: 614.387.9370 Fax: 614.387.9379 www.supremecourt.ohio.gov/boards/boc

DAVID L. DINGWELL
RICHARD A. DOVE
CHAIR
DIRECTOR
SANFORD E. WATSON
D. ALLAN ASBURY
VICE- CHAIR
SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL

OPINION 2017-03
Issued April 7, 2017
(Update and Withdrawal of Former Opinion 2004-1)

Solicitation of Professional Employment Via Email

SYLLABUS: A lawyer may use email to solicit professional employment, subject to the restrictions contained in the Rules of Professional Conduct concerning lawyer communications and solicitation.

A lawyer may allow a lawyer referral service or a lawyer advertising service to transmit a solicitation email on the lawyer’s behalf. However, the lawyer remains responsible for the content of the email and must ensure that the communication complies with the Rules of Professional Conduct.

QUESTIONS PRESENTED: 1) Whether it is proper for a lawyer to advertise legal services by sending unsolicited emails to persons. 2) Whether a lawyer can participate in a lawyer referral service or lawyer advertising service that sends unsolicited emails to persons.1

APPLICABLE RULES: Prof.Cond.R. 5.3, 7.1, 7.2, and 7.3

1
This opinion analyzes the substantially same question addressed by former Adv. Op. 2004-1, but does so under the Ohio Rules of Professional Conduct.
Op. 2017-3
2

OPINION:

Question One

Prof.Cond.R. 7.3 governs a lawyer’s direct contact with persons when soliciting professional employment. A “solicitation” is a type of advertising communication initiated by a lawyer that is directed to a specific person and includes an offer to provide legal services. Prof.Cond.R. 7.3, cmt. [1]. Prof.Cond.R. 7.3 prohibits in-person, live telephone, or real-time electronic solicitation of clients unless the person contacted is a lawyer, family, close personal friend, or has a prior professional relationship with the lawyer. One rationale for the rule is to prevent undue influence, intimidation, and over- reaching by the soliciting lawyer. Prof.Cond.R. 7.3, cmt. [2].

Less direct forms of solicitation including written, recorded, or electronic communications are permissible under the Rules of Professional Conduct. An email is a form of a written communication for purposes of Prof.Cond.R. 7.2 as the term “written” is defined as “a tangible or electronic record of a communication or representation, including * * * electronic communications.” Prof.Cond.R. 1.0(p). Terminology. Solicitation by email is expressly permitted because it does not involve the type of real- time contact prohibited by Prof.Cond.R. 7.3(b) (a communication can be mailed or transmitted by email or other electronic means that do not involve real-time contact * * *.) Prof.Cond.R. 7.3(b), cmt. [3].

While an email solicitation is permissible under the Rules of Professional Conduct, additional ethical and legal concerns must be addressed when a lawyer chooses to utilize the method to advertise the availability of legal services.

Most importantly, all communications concerning a lawyer or a lawyer’s services, regardless of form, must comply with the requirements of Prof.Cond.R. 7.1:

A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or
Op. 2017-3
3

omits a fact necessary to make the statement considered as a whole not materially misleading.

Because email solicitation is treated similarly to other forms of written communication permitted by Prof.Cond.R. 7.1-7.3, the content of the email soliciting professional employment must not be false, misleading, or nonverifiable. Comments [3], [4], and [5] to Prof.Cond.R. 7.1 provide examples of the types of communications that may conflict with the rule.

In addition, Prof.Cond.R. 7.3(b) provides that solicitation in any form is not permitted if 1) the person being solicited has made it known they do not desire to be contacted; or 2) the solicitation involves coercion, duress, or harassment, or the lawyer knows or reasonably should know that the person is a minor, incompetent, or cannot exercise reasonable judgment in employing a lawyer. If after sending an email the lawyer receives no response, further email communication with the same recipient may implicate Prof.Cond.R. 7.3(b). Prof.Cond.R. 7.3(b), cmt. [6].

Lastly, Prof.Cond.R. 7.3(c) requires “[e]very written, recorded or electronic
communication from a lawyer soliciting professional employment from anyone whom the lawyer reasonably believes to be in need of legal services in a particular matter” to comply with three conditions: 1) disclose accurately and fully the manner in which the lawyer became aware of the identity and specific legal need of the addressee; 2) refrain from expressing any predetermined evaluation of the merits of the addressee’s case; and 3) conspicuously include the recital “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” at the beginning and ending of any electronic communication. The inclusion of the “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” recital in the subject line of the email satisfies the requirement to include the recital at the beginning of the communication. Additional restrictions concerning the verification that a defendant in a civil action has been served, and the inclusion of the “Understanding Your Rights” statement thirty days after an accident or disaster that gives rise to a claim must also be observed. Prof.Cond.R. 7.3(d), (e). The “Understanding Your Rights” statement must be included in the body of the email solicitation, and not referenced by an attachment or hyperlink. See Adv. Op. 2013- 2.
Op. 2017-3
4

Additional legal considerations for e-mail solicitation

Under Prof.Cond.R. 7.3, communications may be mailed or transmitted by email
or other electronic means that do not violate other laws governing solicitations. Prof.Cond.R. 7.3, cmt. [3]. In 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) was enacted by the United States Congress to regulate the commercial use of email. The law covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” Lawyers should be mindful that Ohio also regulates commercial email under R.C. 2307.64.

Question Two

A lawyer may permit a lawyer referral service or lawyer advertising service to transmit a solicitation e-mail on the lawyer’s behalf. However, Prof.Cond.R. 5.3 holds the lawyer responsible for the conduct of persons employed by, retained by, or associated with the lawyer that violates Rules of Professional Conduct when the lawyer has ordered or otherwise ratified the conduct. Consequently, the lawyer using a service is responsible for ensuring the service’s compliance with the Rules of Professional Conduct applicable to lawyer communications and solicitation.
A lawyer participating in a service transmitting an email solicitation on the lawyer’s behalf should review the content of the email to ensure its compatibility with the lawyer’s professional obligations.

CONCLUSION: An email is a permissible form of advertisement for lawyers when used to solicit professional employment. However, when using email as a solicitation method, a lawyer must comply with restrictions concerning the communication of a lawyer’s services and solicitation contained in Prof.Cond.R. 7.1-7.3. Solicitation by email is permissible if the method otherwise complies with other laws concerning the use of email for commercial purposes. Lawyers participating in lawyer referral services or advertising services that use email as a solicitation method, must insure that the email communications conform to the Rules of Professional Conduct.