Ohio Board Advisory Opinion Op 03-002

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 2003-2
Issued April 11, 2003
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded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 improper for a lawyer or law firm to provide statistics to attorneys,
business clients, and potential business clients regarding the number of intellectual
property matters won, lost, and settled by the law firm because it is both misleading and
self-laudatory.
It is improper for a lawyer or law firm to offer money-back guarantees to clients on
intellectual property matters. Money-back guarantees violate DR 5-103(B) because the
lawyer acquires a prohibited proprietary interest in the cause of action or subject of
litigation. Money-back guarantees also create a conflict of interest between the lawyer
and the client under DR 5-101(A), because when the agreed upon outcome is not reached
the lawyer has a strong financial incentive to claim that the client did not comply with
conditions of the guarantee and is not entitled to a refund. Money-back guarantees also
create an unjustified expectation under DR 2-101(C)(2) that the lawyer has improper
control or influence over the legal system.
OPINION: This opinion addresses a lawyer’s or law firm’s use of statistics regarding
past results obtained and a lawyer’s or law firm’s offer of money-back guarantees to
clients.
1. Is it proper for a lawyer or law firm to provide statistics to attorneys,
business clients, and potential business clients regarding the number of
intellectual property matters won, lost, and settled by the law firm?
2. Is it proper for a lawyer or law firm to offer money-back guarantees to
clients on intellectual property matters?
A law firm would like to provide attorneys, business clients, and potential business
clients with statistics as to the number of intellectual property matters won, lost, and
settled by the law firm. The law firm’s statistics would include all results, unfavorable as
well as favorable, for the last eleven years for intellectual property matters. The
statistical report would include a statement that the statistics are historical data, not
predictors of the future outcome of any particular case. The law firm would provide the
statistics in face-to-face meetings with the attorneys, business clients, or potential
business clients; or, would send the information upon request to attorneys, business
clients, or potential business clients.

Op. 2003-2 2
Additionally, the law firm would like to offer money-back guarantees to clients in
intellectual property matters. For example, if based on its statistics the law firm believes
there is a sixty five percent or greater chance of winning an intellectual property matter,
the law firm will offer a money-back guarantee to the client. If based upon its statistics
the law firm believes that a trademark will be registered, the law firm will offer a money-
back guarantee if the law firm does not register the trademark.
Question One
Is it proper for a lawyer or law firm to provide statistics to attorneys,
business clients, and potential business clients regarding the number of
intellectual property matters won, lost, and settled by the law firm?
The Ohio Code of Professional Responsibility does not ban the use of statistical
information by law firms, but the statistics must be verifiable and the use must not be
misleading, self-laudatory, or unfair.
DR 2-101(A) A lawyer shall not, on his or her own behalf or that of a
partner, associate, or other lawyer affiliated with the lawyer or the
lawyer’s firm, use, or participate in the use of, any form of public
communication, including direct mail solicitation, that:
1. Contains any false, fraudulent, misleading, deceptive, self-
laudatory, or unfair statement;
2. [Omitted];
3. [Omitted];
4. Contains any claim that is unverifiable;
5. [Omitted].
Previously, this Board advised that the listing of settlement and verdict amounts in past
cases is improper under the advertising rules. In Opinion 2002-7, this Board advised that
“[i]n advertising legal services, it is improper under DR 2-101(A)(1) and (4) for an
attorney or law firm to list settlement or verdict amounts obtained in past cases.
Statements such as ‘Trip/Fall sidewalk-brain injury, $1,000,000 verdict’ or ‘Dog bite,
$50,000 settlement’ are misleading, self-laudatory, and may be unfair. In addition,
confidential settlement amounts are unverifiable.”
Now, the Board advises that the proposed listing of statistics as to the number of
intellectual property matters won, lost, and settled by a law firm, is also improper under
the advertising rules. First, the reporting of “wins” and “losses” in intellectual property is
misleading. Such statistics imply that wins and losses depend solely upon the law firm’s
skill and expertise, without regard to the merits that may more heavily influence the
outcome. Second, the proposed use of the statistics is self-laudatory. Although, the
statistical report clearly states that the data is historical data and not a predictor of future

Op. 2003-2 3
outcome of a particular case, the report creates unjustified expectations that the law firm
is able to control the outcome of cases.
Thus, the Board advises that it is improper for a lawyer or law firm to provide statistics to
attorneys, business clients, and potential business clients regarding the number of
intellectual property matters won, lost, and settled by the law firm because it is both
misleading and self-laudatory.
Question Two
Is it proper for a lawyer or law firm to offer money-back guarantees to
clients on intellectual property matters?
Years ago, an Ohio lawyer ran an advertisement stating that his law firm would represent
defendants in drunken driving cases and that the “[f]ull legal fee [would be] refunded if
[they were] convicted of DRUNK DRIVING.” Zauderer v Office of Disciplinary
Counsel, 471 U.S. 626, 629-30 (1985) (footnote omitted). The Office of Disciplinary
Counsel filed a complaint against the lawyer with regard to the 1981 drunken driving
advertisement (and with regard to a 1982 Dalkon Shield Advertisement). The complaint
alleged that the drunken driving advertisement “violated Ohio Disciplinary Rule 2-
101(A) in that it was ‘false, fraudulent, misleading, and deceptive to the public’ because
it offered representation on a contingent-fee basis in a criminal case—an offer that could
not be carried out under Disciplinary Rule 2-106(C).” Id. at 631 (footnote omitted). The
Supreme Court of Ohio, inter alia, adopted the finding of the Board of Commissioners on
Grievances and Discipline “that because the advertisement failed to mention the common
practice of plea bargaining in drunken driving cases, it might be deceptive to potential
clients who would be unaware of the likelihood that they would both be found guilty (of a
lesser offense) and be liable for attorney’s fees (because they had not been convicted of
drunken driving). Id. at 634-35. The Supreme Court of Ohio issued a public reprimand
to the attorney. The United States Supreme Court affirmed the judgment of the Supreme
of Ohio to the extent it was based on the drunken driving advertisement (and affirmed
and reversed judgment to the extent it was based on the Dalkon Shield advertisement).
Id. at 626, 655-56.
Thus, a lawyer’s advertisement of a refund to a client if convicted of drunk driving was
improper under Ohio’s rules. However, is a lawyer’s offer of a money-back guarantee in
an intellectual property matter also improper?
A money-back guarantee is a promise by a lawyer or law firm to refund a client’s money
when a certain outcome does not occur. A guarantee between a law firm and a client
would explicitly or implicitly place conditions upon the client, such as cooperation with
the law firm, provision of necessary documents, and truthful representations.
An offer of a money-back guarantee in an intellectual property matter gives the lawyer a
proprietary interest in the cause of action or subject of litigation. A proprietary interest in
a cause of action is prohibited under DR 5-103(A) unless there is an applicable exception.

Op. 2003-2 4
DR 5-103 (A) A lawyer shall not acquire a proprietary interest in the cause of
action or subject matter of litigation the lawyer is conducting for a client,
except that a lawyer may:
1. Acquire a lien granted by law to secure the lawyer’s fee or expenses.
2. Contract with a client for a reasonable contingent fee in a civil case.
Neither of the exceptions in DR 5-103(A)(1) and (2) applies. A money-back guarantee is
not a lien granted by law to secure the lawyer’s fee or expenses. A money-back
guarantee is not a contract with a client for a reasonable contingent fee in a civil case. A
money-back guarantee is not a true contingent fee. A money-back guarantee has
characteristics of both a fixed fee and a contingent fee. Like a fixed fee, there is an
agreed upon amount to be paid by the client to the lawyer for the services. Like a fixed
fee, the money is paid to the lawyer in advance or upon the performance of legal services.
Like a contingent fee, there is a risk that the lawyer will earn no money. Unlike a
contingent fee, the money comes from the client before representation begins, rather than
arising from the successful resolution of a legal matter.
A money-back guarantee appears to be a win-win situation for a client, but it is not. The
money-back guarantee creates a conflict of interest under DR 5-101(A)(1) between the
client and the lawyer. If the agreed upon outcome is not reached, the lawyer has a
financial interest to prove that the client did not hold up his or her end of the guarantee,
for example, by not cooperating, by not providing necessary information and documents,
or by failing to be truthful.
DR 5-101(A)(1) Except with the consent of the client after full disclosure,
a lawyer shall not accept employment if the exercise of professional
judgment on behalf of the client will be or reasonably may be affected by
the lawyer’s financial, business, property, or personal interests.
Further, a money-back guarantee creates unjustified expectations under DR 2-101(C)(2)
regarding the results a law firm can achieve. A money-back guarantee implies that the
lawyer has improper influence or control over the legal system.
DR 2-101 (C) A communication is false or misleading if it satisfies any of
the following:
1. [Omitted];
2. Is likely to create an unjustified expectation about results the
lawyer can achieve, or states or implies that the lawyer can achieve
results by means that violate the Code of Professional
Responsibility or other law;
3. [Omitted].
Money-back guarantees did not receive approval in another state. The Association of the
Bar of the City of New York in Formal Opinion 1986-1 considered whether it was

Op. 2003-2 5
ethically proper to provide clients with a form guaranteeing a permanent visa and a
refund of all legal fees if the lawyer fails to obtain a permanent visa. The guarantee was
based on representations from the client that: “he/she has not lied to the American Consul
or other U.S. Government official;” “he/she has told [the attorney] the truth;” and
“conditions as they exist today will remain the same.” Ass’n Bar of the City of New
York, Formal Opinion 1986-1.
The New York advisory committee concluded the proposed conduct was inconsistent
with the Code of Professional Responsibility. According to the advisory committee: “the
‘guarantee’ may mislead clients as to the attorney’s qualifications or experience;” “the
guarantee may be misleading because it purports to provide a ‘money back guarantee’
without disclosing that the client is liable for costs even if the lawyer is unsuccessful;”
and the “guarantee may suggest the appearance of impropriety to the extent that factors
other than the justice of the claim will determine the result of the client’s case.”
Furthermore, the committee stated that not only might the language of the guarantee be
misleading; its proposed contingent fee arrangement may lead to a serious conflict of
interest. The guarantee is based on representations that the client will tell the truth. If the
lawyer is unsuccessful, he has a financial interest in proving that his client lied. “This
conflict strikes at the heart of the attorney-client relationship, for it weakens the mutual
trust and confidence that the relationship is designed to foster.” Ass’n Bar of the City of
New York, Formal Opinion 1986-1.
In closing, this Board advises that it is improper for a lawyer or law firm to offer money-
back guarantees to clients on intellectual property matters. Money-back guarantees
violate DR 5-103(B) because the lawyer acquires a prohibited proprietary interest in the
cause of action or subject of litigation. Money-back guarantees also create a conflict of
interest between the lawyer and the client under DR 5-101(A), because when the agreed
upon outcome is not reached the lawyer has a strong financial incentive to claim that the
client did not comply with conditions of the guarantee and is not entitled to a refund.
Money-back guarantees also create an unjustified expectation under DR 2-101(C)(2) that
the lawyer has improper control or influence over the legal system.
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.