Ohio Board Advisory Opinion Op 90-023

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 90-23
December 14, 1990
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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 ethical for a proposed business venture operating as a placement service to
provide lawyers or law firms with temporary lawyers so long as the business venture operates
within certain narrow, ethical guidelines.
OPINION: We have before us your request for an advisory opinion on whether it is ethical for a
proposed business venture to provide lawyers, law firms, sole practitioners, and corporate legal
departments with the placement and use of temporary lawyers. According to your request the
proposed business venture would be conducted by an Ohio corporation whose shares are owned by
two attorneys licensed to practice law in Ohio. Any practice of law would be maintained separately
from the business venture and would be completely unrelated to the business of placing temporary
lawyers.
Several state bar ethics committees and the ABA Standing Committee on Ethics and Professional
Responsibility have considered the issue of temporary attorney services. Such services have been
approved by those states and the ABA when the services followed guidelines designed to avoid
ethical problems arising under the Model Code. The ABA's approach in Formal Opinion 88-356
(1988) is thorough and well reasoned in its treatments of ethical issues including conflict of
interest, confidentiality of client information, disclosure to the client of arrangements between the
firm and the lawyer, and arrangements with the lawyer placement agencies. Although Ohio did not
adopt the Model Code, the Ohio Code of Professional Responsibility incorporated provisions that
address similar ethical concerns. To avoid unethical practices and to enable temporary lawyer
placement services to be operated in a manner consistent with the Ohio Code of Professional
Responsibility, the following guidelines should be observed and included in a written agreement
governing the use and placement of temporary lawyers.
Op. 90-23 2

First, a suitable fee structure must be developed that would eliminate fee-splitting between the
agency and the lawyer as prohibited by DR 3-102(A). DR 3-102(A) states that a lawyer or law
firm shall not share legal fees with a non-lawyer. The placement agency intends to receive
compensation directly from the law firms as a fee based on a percentage of the lawyer's
compensation. Recently the Committee on Professional Ethics of the Association of the Bar of The
City Of New York in Formal Opinion 1989-2 concluded that since the agency unquestionably
provides services in locating recruiting, screening, and placing temporary lawyers and those
services are not legal services, the compensation paid by the law firm to the agency for those
services is not a legal fee within the meaning of DR 3-102 (A). It can therefore be concluded that
such a fee arrangement to an agency does not constitute impermissible sharing of fees with non-
lawyers. In Formal Opinion 1988-3 the Committee on Professional Ethics of the Association of the
Bar of the City of New York suggested an elimination of many of the fee related ethical concerns
by requiring the law firm to pay an hourly wage directly to the attorney and pay the agency a fixed
fee.
The need to avoid interference by the placement agency with the exercise of a lawyer's judgment
sets the stage for the second guideline. The agency must agree not to attempt to limit or in any way
to control the amount of time a lawyer may spend on any particular matter or his professional
judgments in the matter. Care should be taken not to violate DR 5-107(C)(3). The rule states that a
lawyer shall not practice with a professional corporation or association if a non-lawyer has the right
to direct or control the professional judgment of a lawyer. The proposed placement agency must
agree to execute an agreement with the temporary lawyer that states that the agency will not exert
any control or influence over the exercise of professional judgment by the lawyer, including
limiting or extending the amount of time the lawyer spends on work for the clients of the
employing firm.
Third, the agency must not interfere with the traditional lawyer-client relationship. The agency
must agree not to breach the lawyer's duty to preserve client's confidences and secrets as stated in
DR 4-101. The shareholders of the proposed agency intend to facilitate the ability of the temporary
lawyers to maintain all confidences and secrets for undertaken matters.
Op. 90-23 3

Fourth, so as not to violate DR 5-107(B) that states "[a] lawyer shall not permit a person who
recommends, employs, or pays him to render legal services for another to direct or regulate his
professional judgment in rendering such legal services," the agency must agree not to attempt any
such control.
Fifth, the proposed agency must avoid the conflicts of interest set forth in DR 5-105. A lawyer
should decline or refuse to continue employment if the interest of another client may impair the
independent professional judgment of the lawyer.
Sixth, there is a duty under DR 5-107 (A) (1) to disclose to the client the temporary nature of the
relationship in order to accept compensation for the legal services.
Finally, the agency must comply with DR 6-101 and not require a temporary lawyer to handle a
legal matter for which he is not competent. The hiring firm also has the ethical responsibility to
insure the competence of the temporary lawyer.
The proposed placement agency further intends to advertise its service to law firms in newspapers
and trade journals. Direct mail advertising with follow up phone calls is also contemplated. The
Code of Professional Responsibility states that methods of advertising that are false, misleading or
deceptive are prohibited. Here, where the target is a law firm, not consumers, it is unclear whether
the advertising is even regulated by the Code. In any event, the likelihood that such advertising
would be deceptive or misleading is small when it simply informs law firms of the availability of
temporary legal services.
In conclusion, it is the Board's opinion and you are so advised that a proposed business venture that
places and uses temporary lawyers may be established if it follows the ethical guidelines discussed
above.
This is an informal, nonbinding advisory opinion, based upon the facts as presented and
limited to questions arising under the Code of Professional Responsibility.