Ohio Board Advisory Opinion Op 91-026

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 91-26
Issued December 6, 1991
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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.]
[Not current-subsequent rule amendments to DR 2-101, eff. Jan. 1, 1993, Aug. 16, 1993, Jan. 1, 2000; DR 2-103,
eff. Jul. 1, 1993, Nov. 1, 1999.]
SYLLABUS: An attorney may contact by mail an officer or manager of a business regarding
employing the lawyer for general representation of the business, where the business routinely
employs attorneys to handle corporate work provided that such communication complies with
Disciplinary Rule 2-101 and Disciplinary Rule 2-103. Similarly, an attorney may contact by mail
an officer or manager of a business for the purpose of suggesting that the business hire the attorney
as an employee to serve as inhouse counsel. Such contact should be by mail and not by telephone.
OPINION: Two related questions are presented, both regarding an attorney seeking legal
employment from a business.
1. May an attorney contact, by mail or by telephone, an officer or manager of a
business regarding employing the lawyer for general representation of the
business, where the business routinely employs attorneys to handle corporate
work?
2. May an attorney contact, by mail or by telephone, an officer or manager of a
business for the purpose of suggesting that the business hire the attorney as an
employee to serve as in house counsel?
Disciplinary Rule 2-101 of the Code of Professional Responsibility governs publicity by lawyers.
Disciplinary Rule 2-103 governs recommendation of professional employment. Since it is
axiomatic that in seeking employment some publicity and recommendations about oneself are
involved, both rules are applicable to the questions addressed by this opinion.

Op. 91-26 2
As to the publicity rule, the broad proviso of Disciplinary Rule 2-101(A) is that a lawyer shall not
"use, or participate in the use of, any form of communication containing a false, fraudulent,
misleading, or deceptive statement or claim." False and fraudulent communication is defined
within Disciplinary Rule 2-101(C). Under a well known provision of the publicity rule,
Disciplinary Rule 2-101(B), an attorney is allowed to communicate with potential consumers of
legal services through the radio or television or by printed material through the mail or otherwise,
provided that such communication is in compliance with Disciplinary Rule 2-101(A), and subject
to Disciplinary Rule 2-102 through Disciplinary Rule 2-105 which provide specific rules on
professional cards, announcement cards, office signs, letterheads, firm names, recommendations,
and limitations on practice.
As to the rule governing recommendations of professional employment, several provisions should
be noted. Disciplinary Rule 2-103(C) prohibits, with certain exceptions, a lawyer from requesting a
person or organization to recommend or promote the use of his services as a private practitioner;
however, this rule does not govern the issues raised in this opinion because the lawyer is not asking
the business to recommend him or promote him to others, but rather the lawyer is asking whether it
is proper to recommend or promote him or herself to the business. Therefore, more pertinent to this
opinion is Disciplinary Rule 2-103(A) which requires that "[a] lawyer shall not recommend
employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has
not sought his advice regarding employment of a lawyer, except as provided in DR 2-101." By
operation, Disciplinary Rule 2-103(A) allows a lawyer to seek employment through advertisement
as provided for in Disciplinary Rule 2-101. In support, Disciplinary Rule 2-103(E) states that
"[n]othing in this Rule [Disciplinary Rule 2-103] prohibits a lawyer from accepting employment
received in response to his own advertising, provided such advertising is in compliance with DR 2-
101."
Also relevant are several Supreme Court opinions. Since 1977, lawyer advertising has been
recognized and treated as a category of constitutionally protected speech. See Bates v. State Bar of
Arizona, 433 U.S. 350 (1977). As a consequence, states may not categorically prohibit lawyers
from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to
potential clients known to face particular legal problems. See Shapero v. Kentucky Bar Ass'n 486
U.S. 466 (1988). However, in-person solicitation by lawyers can be banned, under circumstances
likely to pose dangers that the State has a right to prevent. See Ohralik v. Ohio State Bar Ass'n,
436 U.S. 447, 449 (1978).

Op. 91-26 3
In keeping with these opinions, this Board has advised that a lawyer may make written contact with
individuals if such contact is in compliance with the Code. For example, a lawyer may direct mail
solicit indigent clients known to need legal representation. Ohio Sup.Ct, Bd. of Comm’rs on
Grievances and Discipline, Op. 88-3 (1988). A lawyer may direct mail solicit potential clients for
representation in criminal matters. Ohio Sup.Ct, Bd. of Comm’rs on Grievances and Discipline,
Op. 90-21(1990). A lawyer may direct mail solicit individuals whose names have been obtained
from published notices of foreclosures or suits filed. Ohio Sup.Ct, Bd. of Comm’rs on Grievances
and Discipline, Op. 91-4 (1991).
As to contacting businesses or organizations, this Board has issued one opinion advising that an
attorney may write a union representative requesting that the attorney's firm be considered for
recommendation of employment to the union membership. Ohio Sup.Ct, Bd. of Comm’rs on
Grievances and Discipline, Op. 91-17 (1991). However, that opinion does not apply to the
questions presented for two reasons: the union was being asked to make a recommendation of
employment of the attorney's firm to union members and it involved bona fide organizations for
which the Code provides special rules. Id. Thus, this Board has not addressed the precise issue of
whether an attorney may contact a business to seek legal employment.
As a practical matter, an attorney who seeks legal employment from a business must communicate
with the business. Since states may not categorically prohibit lawyers from soliciting legal
business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known
to face particular legal problems, Shapero v. Kentucky Bar Ass'n 486 U.S. 466 (1988), it follows
that a state could not categorically prohibit lawyers from soliciting legal employment from
businesses. Nor does the language of the Code suggest such prohibition. Disciplinary Rule 2-
103(A), while restricting recommendations of professional employment, specifically allows for
communications as provided for in Disciplinary Rule 2-101. Since Disciplinary Rule 2-101(A) by
its language governs "any form of communication," communications by a lawyer seeking
employment, even though directed to businesses or organizations, are communications governed by
Disciplinary Rule 2-101.

Op. 91-26 4
Thus, in answer to the questions presented, this Board's opinion is that an attorney may contact an
officer or manager of a business regarding employing the lawyer for general representation of the
business, where the business routinely employs attorneys to handle corporate work provided that
such communication complies with Disciplinary Rule 2-101 and Disciplinary Rule 2-103.
Similarly, an attorney may contact an officer or manager of a business for the purpose of
suggesting that the business hire the attorney as an employee to serve as inhouse counsel.
However, the Board advises that such contact be by mail and not by telephone. This suggestion is
consistent with Disciplinary Rule 2-101(B) which does not include telephoning in its list of
methods by which an attorney may advance the informed selection process of lawyers to potential
consumers of legal services. It is also consistent with a past opinion of the Board which stated that
“[a]lthough telephone solicitation may be less intrusive than in-person solicitation, we believe it
creates a sense of urgency and is an invasion of privacy." Ohio Sup.Ct, Bd. of Comm’rs on
Grievances and Discipline, Op. 90-2 (1990).
Finally, a cautionary word about follow-up communications may be warranted. Though the Code
does not specifically address this issue, this Board has stated in a prior opinion that “[i]t is our
belief that no follow-up communication should be made unless the recipient responds positively to
the first, written announcement." Ohio Sup.Ct, Bd. of Comm’rs on Grievances and Discipline, Op.
87-4.
In conclusion, the Code of Professional Responsibility does allow, with restrictions, an attorney to
communicate in order to seek legal employment. However, the Code does establish rules and
requirements for such communications and recommendations of professional employment, found
within Disciplinary Rule 2-101 and Disciplinary Rule 2-103, and these rules and the rules cited
therein must be followed.
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.