Differences from ABA Model Rules
| Rule 1.2(c) Limited Scope | Significant Changes |
| Rule 5.4(a) Fee-Sharing | Significant Changes |
| Rules 5.4(b)-(d) Non-Lawyer Ownership | Minor Clerical Changes |
| Rule 5.5. Unauthorized Practice of Law | Significant Changes |
| Rule 5.7 Law Related Services | Significant Changes |
| Rule 6.5 Limited Scope | Minor Clerical Changes |
| Rule 7.2(b) Lawyer Referral | Significant Changes |
| Cloud Computing Advisory | Yes |
| Technology Competency Rules | Yes |
ABA Rule 1.2(c) (Limited Scope)
RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
…
(c)A lawyer may limit the scope of a new or existing representation if the limitation is reasonable under the circumstances and communicated to the client, preferably in writing
Relevant Comments:
[6][RESERVED]
[7]Although division (c) affords the lawyer and client substantial latitude in defining the scope of the representation, any limitation must be reasonable under the circumstances. If, 15 for example, a client’s objective is limited to securing general information about the law that the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See Rule 1.1.
[7A]Written confirmation of a limitation of a new or existing representation is preferred and may be any writing that is presented to the client that reflects the limitation, such as a letter or electronic transmission addressed to the client or a court order. A lawyer may create a form or checklist that specifies the scope of the client-lawyer relationship and the fees to be charged. An order of a court appointing a lawyer to represent a client is sufficient to confirm the scope of that representation.
[8] All agreements concerning a lawyer’s representation of a client must accord with the Ohio Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.
Modified By:
Future Lawn, Inc v. Steinberg, 2008 Ohio 4127 Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.
Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.
ABA Rule 5.4(a) (Fee-sharing)
RULE 5.4: PROFESSIONAL INDEPENDENCE OF A LAWYER
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except in any of the following circumstances:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement;
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed or retained the lawyer in the matter;
(5) a lawyer may share legal fees with a nonprofit organization that recommended employment of the lawyer in the matter, if the nonprofit organization complies with Rule XVI of the Supreme Court Rules for the Government of the Bar of Ohio.
Relevant Comments:
[1]The provisions of this rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in division (c), such arrangements should not interfere with the lawyer’s professional judgment.
Modified By:
Cleveland Bar Ass’n v. Nosan, 840 N.E.2d 1073 (Ohio 2006) (lawyer shared fees with debt-counseling company that advertised for clients and provided lawyer with office space and support staff)
Disciplinary Counsel v. Stranke, 852 N.E.2d 1202 (Ohio 2006) (lawyer shared fees with bankruptcy counseling firm that solicited and referred clients to him)
Richland Cnty. Bar Ass’n v. Akers, 835 N.E.2d 29 (Ohio 2005) (lawyer reviewed and approved documents prepared by secretary for clients he never spoke with, then told secretary how much to bill each client, to deduct $30 per hour for her services, and remit rest to him)
ABA Rule 5.4(b – d)
Non-lawyer ownership(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if any of the following applies:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation;
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Relevant Comments:
[2]This rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent)
Modified By:
Ohio Sup. Ct. Ethics Op. 02-5 (2002) (improper for lawyer to donate legal services to be auctioned or used as prize drawing at fund-raiser for charitable organization; arrangement may limit exercise of professional judgment in deciding which clients to accept and what services to provide)
ABA Rule 5.5 (UPL)
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW
…
(b) A lawyer who is not admitted to practice in this jurisdiction shall not do either of the following:
(1) except as authorized by these rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law;
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c)A lawyer who is admitted in another United States jurisdiction, is in good standing in the jurisdiction in which the lawyer is admitted, and regularly practices law may provide legal services on a temporary basis in this jurisdiction if one or more of the following apply:
(1) the services are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) the services are reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) the services are reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission;
(4) the lawyer engages in negotiations, investigations, or other nonlitigation activities that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted and in good standing in another United States jurisdiction may provide legal services in this jurisdiction through an office or other systematic and continuous presence in any of the following circumstances:
(1) the lawyer is registered in compliance with Gov. Bar R. VI, Section 6 and is providing services to the employer or its organizational affiliates for which the permission of a tribunal to appear pro hac vice is not required;
(2) the lawyer is providing services that the lawyer is authorized to provide by federal or Ohio law;
(3) the lawyer is registered in compliance with and is providing pro bono legal services as permitted by Gov. Bar R. VI, Section 6
Relevant Comments:
[1]A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Division (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person. For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.
[2]The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.
[3]A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
[4]Other than as authorized by law or this rule, a lawyer who is not admitted to practice generally in this jurisdiction violates division (b)(1) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. For example, advertising in media specifically targeted to Ohio residents or initiating contact with Ohio residents for solicitation purposes could be viewed as a systematic and continuous presence. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1 and 7.5(b).
[5]There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public, or the courts. Division (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of divisions (d)(1) and (d)(2), this rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here.
[6]There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under division (c). Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.
[7]Divisions (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory, or commonwealth of the United States. The word “admitted” in division (c) contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.
[8]Division (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this provision to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.
[9]After registering with the Supreme Court Office of Attorney Services pursuant to Gov. Bar R. XII, lawyers not admitted to practice generally in this jurisdiction may be authorized by order of a tribunal to appear pro hac vice before the tribunal. Under division (c)(2), a lawyer does not violate this rule when the lawyer appears before a tribunal pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal, this rule requires the lawyer to obtain that authority. “Tribunal” is defined in Gov. Bar R. XII, Section 1(A), as “a court, legislative body, administrative agency, or other body acting in an adjudicative capacity.”
[10]Division (c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.
[11]When a lawyer has been or reasonably expects to be admitted to appear before a tribunal, division (c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the tribunal. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.
[12]Division (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.
[13]Division (c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within divisions (c)(2) or (c)(3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.
[14]Divisions (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
[15] Division (d) identifies three circumstances in which a lawyer who is admitted to practice in another United States jurisdiction and in good standing may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in divisions (d)(1) through (d)(3), a lawyer who is admitted to practice law in another jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.
[16][RESERVED]
[17]If a lawyer employed by a nongovernmental entity establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, division (d)(1) requires the lawyer to comply with the registration requirements set forth in Gov. Bar R. VI, Section 3. 151
[18]Division (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or Ohio law, which includes statute, court rule, executive regulation, or judicial precedent.
[19]A lawyer who practices law in this jurisdiction pursuant to divisions (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
[20]In some circumstances, a lawyer who practices law in this jurisdiction pursuant to divisions (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).
[21]Divisions (c) and (d) do not authorize communications advertising legal services in Ohio by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services in Ohio is governed by Rules 7.1 to 7.5.
Modified By:
Akron Bar Ass’n v. Miller, 684 N.E.2d 288 (Ohio 1997) (nonlawyer not insulated from unauthorized practice of law by providing self-serving disclaimer stating that no legal advice is being offered)
Cincinnati Bar Ass’n v. Cromwell, 695 N.E.2d 243 (Ohio 1998) (practice of law includes communicating with insurers about claims)
Cincinnati Bar Assn. v. Jansen, 5 N.E.3d 627 (Ohio 2014) (nonlawyer who contracted to mediate dispute between debtor and creditor engaged in unauthorized practice of law)
Cincinnati Bar Ass’n v. Mullaney, 894 N.E.2d 1210 (Ohio 2008) (advising debtors of their legal rights and terms and conditions of settlement constituted practice of law)
Cincinnati Bar Ass’n v. Telford, 707 N.E.2d 462 (Ohio 1999) (Giving legal advice is practice of law)
Cleveland Metropolitan Bar Ass’n v. Davie, 977 N.E.2d 606 (Ohio 2012) (paralegal included signature block with “firm” name and bar number on memorandum submitted to parole board)
Disciplinary Counsel v. Cotton, 873 N.E.2d 1240 (Ohio 2007) (in “prison universe, where the availability of licensed attorneys is generally nonexistent, the UPL Board’s interest in regulating the legal profession is overridden by the need for prison inmates to have help in obtaining access to the courts”)
Disciplinary Counsel v. Cantrell, 928 N.E.2d 1100 (Ohio 2010) (lawyer on inactive status represented decedent’s estate)
Disciplinary Counsel v. Harris, 996 N.E.2d 921 (Ohio 2013) (out-of-state lawyer who represented client in bankruptcy court in Ohio did not engage in unauthorized practice of law because he was authorized to practice before bankruptcy court)
Disciplinary Counsel v. Lee, 49 N.E.3d 1255 (Ohio 2016) (out-of-state lawyer agreed to represent teacher before Kentucky state licensing board but then failed to move for admission pro hac vice or take any other action on client’s behalf)
Disciplinary Counsel v. Troller, 6 N.E.3d 1138 (Ohio 2014) (lawyer suspended for failing to register or comply with CLE requirements continued for several years to act as company chief legal counsel and practice law)
Disciplinary Counsel v. Willard, 913 N.E.2d 960 (Ohio 2009) (lawyer partnered with nonattorney organization to represent clients in mortgage foreclosure proceedings)
Mahoning County Bar Ass’n v. Senior Servs. Group Inc., 642 N.E.2d 102 (Ohio Bd. of Comm’rs on UPL 1994) (corporation engaged in unauthorized practice by conducting seminars on estate planning, trusts, probate matters, and tax considerations at which advice was provided on nature and effect of such legal matters and specific advice was given to individuals regarding their particular estate planning needs)
Marysville Exempted Village Local School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision, 991 N.E.2d 1134 (Ohio 2013) (upholding statute permitting nonlawyer representatives to prepare and file property tax appeals and reaffirming authorization for nonlawyers to perform limited activities within administrative proceedings that generally would constitute practice of law where public will benefit)
Med Controls Inc. v. Hopkins, 573 N.E.2d 154 (Ohio 1989) (contract under which collection agency could institute legal action to collect client bills, through counsel chosen and compensated by agency, constituted unauthorized practice of law by agency)
Miami County Bar Ass’n v. Wyandt & Silvers Inc., 838 N.E.2d 655 (Ohio 2005) (accountant advised clients about whether and how to incorporate businesses, and created paperwork necessary for incorporations)
Ohio State Bar Ass’n v. Burdzinski, Brinkman, Czarzasty & Landwehr Inc., 858 N.E.2d 372 (Ohio 2006) (unauthorized practice for nonlawyer to draft collective bargaining agreement for management client)
Office of Disciplinary Counsel v. Fucetola, 753 N.E.2d 180 (Ohio 2001) (issuing injunction against New Jersey lawyer who filed complaint in Ohio on behalf of longtime client and simultaneously filed motion for admission pro hac vice but appeared in court before court ruled on pro hac vice motion)
Richman Properties, L.L.C. v. Medina Cty. Bd. of Revision, 13 N.E.3d 1126 (Ohio 2014) (cross-examination of witness by nonlawyer president of LLC property owner at county tax appeal hearing constituted unauthorized practice of law and should not have been permitted but did not warrant reversal)
Trumbull County Bar Ass’n v. Hanna, 684 N.E.2d 329 (Ohio 1997) (financial planner recommended use of particular estate-planning device and, rather than recommending that clients contact lawyer about use of inter vivos trust, personally arranged for review of information and preparation of documents)
Worthington City Sch. Dist. Bd. of Educ. v. Franklin County Bd. of Revision, 707 N.E.2d 499 (Ohio 1999) (nonlawyer corporate officers engaged in unauthorized practice of law by preparing, signing, and filing complaints with county board of revision on behalf of corporation)
Other Definitions:
Land Title Abstract & Trust Co. v. Dworken, 193 N.E. 650 (1934) at 650.
The practice of law is, ‘as generally understood, the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.’ 49 Corpus Juris, p. 1313.
This view is supported by substantial authorities, among the cases being People v. Alfani, 227 N. Y. 334, 125 N. E. 671, where it is held as follows:
‘The practice of law is not limited to the conduct of cases in courts. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. An attorney-at-law is one who engages in any of these branches of the practice of law.’
A very terse definition of the practice of law is announced in the case of People v. Title Guarantee & Trust Co., 180 App.Div. 648, 168 N. Y. S. 278, 280, as follows:
‘The ‘practice of the law,’ as the term is now commonly used, embraces much more than the conduct of litigation. The greater, more responsible, and delicate part of a lawyer’s work is in other directions. Drafting instruments creating trusts, formulating contracts, drawing wills and negotiations, all require legal knowledge and power of adaptation of the highest order. Beside these employments, mere skill in trying lawsuits, where ready wit and natural resources often prevail against profound knowledge of the law, is a relatively unimportant part of a lawyer’s work.’
Though this case was distinguished from People v. Alfani, supra, and the judgment reversed in 227 N. Y. 366, 125 N. E. 666, 669, the several opinions disclose wherein the case differs materially from the instant case, in that such decision turned upon the interpretation of the New York statute with reference to which the majority opinion states that ‘persuasive reasons might be marshalled in favor of a decision of the question in either way.’ The correctness of this observation is indicated by the fact that, of the four judges joining in the judgment, two state limited concurrences, while Cardozo, J., announces a dissent in which two judges concur. But in none of those opinions is there any modification of the definition of the practice of law as theretofore announced.
In the case of Boykin v. Hopkins, 174 Ga. 511, 162 S. E. 796, the Supreme Court of Georgia adopts and applies the definition of the practice of law above quoted.
McMillan v. McCahan, 167 N.E.2d 541 (1960) at 550. (followed above).
ABA Rule 5.7 (Law Related Services)
RULE 5.7: RESPONSIBILITIES REGARDING LAW-RELATED SERVICES
(a) A lawyer shall be subject to the Ohio Rules of Professional Conduct with respect to the provision of law-related services, as defined in division (e) of this rule, if the law-related services are provided in either of the following circumstances:
(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients;
(2) in other circumstances by an entity controlled or owned by the lawyer individually or with others, unless the lawyer takes reasonable measures to ensure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.
(b) A lawyer who controls or owns an interest in a business that provides a law-related service shall not require any customer of that business to agree to legal representation by the lawyer as a condition of the engagement of that business. A lawyer who controls or owns an interest in a business that provides law-related services shall disclose the interest to a customer of that business, and the fact that the customer may obtain legal services elsewhere, before performing legal services for the customer.
(c)A lawyer who controls or owns an interest in a business that provides a law-related service shall not require the lawyer’s client to agree to use that business as a condition of the engagement for legal services. A lawyer who controls or owns an interest in a business that provides a law-related service shall disclose the interest to the client, and the fact that the client may obtain the law-related services elsewhere, before providing the law-related services to the client.
(d) Limitations or obligations imposed by this rule on a lawyer shall apply to both of the following:
(1) every lawyer in a firm who knows that another lawyer in his or her firm controls or owns an interest in a business that provides a law-related service;
(2) every lawyer in a firm that controls or owns an interest in a business that provides a law-related service.
(e) The term “law-related services” denotes services that might reasonably be performed in conjunction with the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
Relevant Comments:
[1]When a lawyer performs law-related services, sometimes referred to as “ancillary business,” or controls an organization that does so, there exists the potential for ethical problems. Principal among these is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship. The recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflicting interests, and obligations of a lawyer to maintain professional independence apply to the provision of law-related services when that may not be the case.
[2]Rule 5.7 applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related services are performed and whether the law-related services are performed through a law firm or a separate entity. The rule identifies the circumstances in which all of the Ohio Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of law-related services is subject to those rules that apply generally to lawyer conduct, regardless of whether the conduct involves the provision of legal services. See, e.g., Rule 8.4.
[3]When law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer’s provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Ohio Rules of Professional Conduct as provided in division (a)(1). Even when the law-related and legal services are provided in circumstances that are distinct from each other, for example through separate entities or different support staff within the law firm, the Ohio Rules of Professional Conduct apply to the lawyer as provided in division (a)(2) unless the lawyer takes reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not apply.
[4]Law-related services also may be provided through an entity that is distinct from that through which the lawyer provides legal services. If the lawyer individually or with others has control of such an entity’s operations or owns an interest in the entity, the rule requires the lawyer to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Ohio Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. A lawyer’s control of an entity extends to the ability to direct its operation. Whether a lawyer has control will depend upon the circumstances of the particular case.[5]When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with Rule 1.8(a).
[6]In taking the reasonable measures referred to in division (a)(2) to assure that a person using law-related services understands the practical effect or significance of the inapplicability of the Ohio Rules of Professional Conduct, the lawyer should communicate to the person receiving the law-related services, in a manner sufficient to ensure that the person understands the significance of the fact, that the relationship of the person to the business entity will not be a client-lawyer relationship. The communication should be made before entering into an agreement for provision of or providing law-related services and preferably should be in writing.
[7]The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding.
[8]A lawyer should take special care to keep separate the provision of law-related and legal services to minimize the risk that the recipient will assume that the law-related services are legal services. The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. Under some circumstances the legal and law-related services may be so closely entwined that they cannot be distinguished from each other, and the requirement of disclosure and consultation imposed by division (a)(2) of the rule cannot be met. In such a case a lawyer will be responsible for assuring that both the lawyer’s conduct and, to the extent required by Rule 5.3, that of nonlawyer employees in the distinct entity that the lawyer controls complies in all respects with the Ohio Rules of Professional Conduct.
[9]A broad range of economic and other interests of clients may be served by lawyers’ engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting.
[10]When a lawyer is obliged to accord the recipients of such services the protections of those rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the proscriptions of the rules addressing conflict of interest [Rules 1.7 to 1.11, especially Rules 1.7(a)(2) and 1.8(a), (b) and (f)], and scrupulously adhere to the requirements of Rule 1.6 relating to disclosure of confidential information. The promotion of the law-related services must also in all respects comply with Rules 7.1 to 7.3, dealing with advertising and solicitation. In that regard, lawyers should take special care to identify the obligations that may be imposed as a result of a jurisdiction’s decisional law.
[11]When the full protections of all of the Ohio Rules of Professional Conduct do not apply to the provision of law-related services, principles of law external to the rules, for example, the law of principal and agent, govern the legal duties owed to those receiving the services. Those other legal principles may establish a different degree of protection for the recipient with respect to confidentiality of information, conflicts of interest and permissible business relationships with clients. See also Rule 8.4.
[12]Division (d) makes the prohibitions and disclosures imposed in divisions (b) and (c) applicable to all lawyers in a lawyer’s firm where the lawyer knows that another lawyer in the firm controls or owns an interest in a business that provides law-related services, and every lawyer in a firm that controls or owns an interest in a business that provides law-related services.
Modified By:
Ohio State Bar Ethics Op. 2011-02 (2011) (law firm may own and operate as ancillary business professional employer organization that would manage firm’s human resource functions if it complies with Rule 5.7)
Ohio Sup. Ct. Ethics Op. 2013-3 (2013) (use of judicial title by former judge engaged in law-related business violates Rule 8.4(c) and (e) even though business distinct from law practice)
Disciplinary Counsel v. Carroll, 831 N.E.2d 1000 (Ohio 2005) (submitting false timesheets while serving as executive director of state barber board)
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
RULE 6.5: NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter is subject to both of the following:
(1) Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest;
(2) Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a lawfirm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in division (a)(2) of this rule, Rule 1.10 is inapplicable to a representation governed by this rule.
Relevant Comments:
[1]Legal services organizations, courts, and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services—such as advice or the completion of legal forms—that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics, or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See e.g., Rules 1.7, 1.9, and 1.10.
[2]A lawyer who provides short-term limited legal services pursuant to this rule must communicate with the client, preferably in writing, regarding the limited scope of the representation. See Rule 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this rule, the Ohio Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.
[3]Because a lawyer who is representing a client in the circumstances addressed by this rule ordinarily is not able to check systematically for conflicts of interest, division (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a) in the matter.
[4]Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, division (b) provides that Rule 1.10 is inapplicable to a representation governed by this rule except as provided by division (a)(2). Division (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a). By virtue of division (b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.
[5]If, after commencing a short-term limited representation in accordance with this rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a), and 1.10 become applicable.
ABA Rule 7.2(b) (Lawyer referral)
RULE 7.2: ADVERTISING AND RECOMMENDATION OF PROFESSIONAL EMPLOYMENT
…
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may pay any of the following:
(1) the reasonablecosts of advertisements or communications permitted by this rule;
(2) the usual charges of a legal service plan;
(3) the usual charges for a nonprofit or lawyer referral service that complies with Rule XVI of the Supreme Court Rules for the Government of the Bar of Ohio;
(4) for a law practice in accordance with Rule 1.17.
Relevant Comments:
[5]Except as provided by these rules, lawyers are not permitted to give anything of value to another for recommending the lawyer’s services or channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. A reciprocal referral agreement between lawyers, or between a lawyer and a nonlawyer, is prohibited. Cf. Rule 1.5.[5A]Division (b)(1) allows a lawyer to pay for advertising and communications permitted by this rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents, and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers.Moreover, a lawyer may pay others for generating client leads, including Internet-based client leads, provided the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5 and 5.4, and the lead generator’s communications are consistent with Rule 7.1. To comply with Rule 7.1, a lawyer shall not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See Rules 5.3 and 8.4(a).
[6]A lawyer may pay the usual charges of a legal service plan or a nonprofit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by the public to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this rule only permits a lawyer to pay the usual charges of a nonprofit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved pursuant to Rule XVI of the Supreme Court Rules for the Government of the Bar of Ohio. Relative to fee sharing, see Rule 5.4(a)(5).
[7]A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with the public, but such communication must be in conformity with these rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.
[8][RESERVED]
Modified By:
Ohio Sup. Ct. Ethics Op. 2001-2 (2001) (when lawyer “pays an entity to perform only the ministerial function of placing the attorney’s name, address, phone number, fields of practice, and biographical information into the view of the public that is considered payment for an advertisement, not payment for a referral”).
Or. Ethics Op. 2005-79 (2005) (lawyer may accept clients via church’s prepaid legal services plan available to church members)
Ohio Sup. Ct. Ethics Op. 2000-5 (2000) (lawyers may participate in online referral service only if service meets detailed requirements of ethics rules)
Cincinnati Bar Ass’n v. Haas, 699 N.E.2d 919 (Ohio 1998) (lawyer suspended for paying insurance salesperson for referring personal injury clients
Cloud Computing
Informal Advisory Opinion 2013-03
Reasonable care standard
Recommendations
- Competently select appropriate vendor.
- Preserve confidentiality and safeguard client property.
- Provide reasonable supervision of cloud vendor.
- Communicate with the client as appropriate.
Technology Competency
Comment to Rule 1.1
Maintaining Competence
[8]To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.