Ohio Board Advisory Opinion Op 98-009

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 98-9
Issued June 5, 1998
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded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 5-103(B), eff. Jun. 14, 1999.]
SYLLABUS: It is improper under DR 2-101(E)(1)(c) for a lawyer who advertises
regarding continent fees to use statements such as “There’s no charge unless we win your
case” or “You pay us only when we win” or any other phrase creating the expectation that
it costs a client nothing to litigate when there is no recovery. It is also improper under
DR 2-101(E)(1)(c) to advertise “No fee without recovery” or “You pay no fee unless you
win” unless the attorney adds the additional information required under DR 2-
101(E)(1)(c). A lawyer who advertises regarding contingent fees has an obligation under
the rule to advise the public that contingent fee clients are responsible for costs and
expenses of litigation and to disclose whether percentages are computed before or after
deduction of costs and expenses. Thus, for example, if a lawyer wishes to state “You pay
no legal fees unless you win,” the lawyer must also state “Contingent fee clients are
responsible for costs and expenses of litigation” and “Contingent fee percentages are
computed before (or after) deduction of costs and expenses” or make other similar
statements that fulfill the attorney’s obligations under the rule.
OPINION: This opinion addresses a question regarding the advertising of contingent fee
arrangements.
Is it proper for a lawyer who advertises to use statements such as “No fee
without recovery” or “You pay no fee unless you win” or “There’s no
charge unless we win your case” or “You pay us only when we win”?
Creating the expectation that it costs a client nothing to litigate is wrong. Under DR 5-
103(B) of the Ohio Code of Professional Responsibility, a lawyer may advance or
guarantee the expenses of litigation, “provided the client remains ultimately liable for
such expenses.” Under DR 2-101(E)(1), this obligation must be revealed by the lawyer in
the advertising of contingent fees.
DR 2-101(E)(1) Any of the following information with regard to fees and
charges, if presented in a dignified manner, is acceptable for
communication to the public in the manner stipulated by DR 2-101(B):
(c) Contingent fee rates, subject to DR-106(C), provided
that the statement discloses whether percentages are
computed before or after deduction of costs and
Withdrawn by Adv. Op. 2017-01

Op. 98-9 2
expenses and advises the public that, in the event of
an adverse verdict or decision, the contingent fee
litigant could be liable for payment of court costs,
expenses of investigation, expenses of medical
examinations, and costs incurred in obtaining and
presenting evidence; [Emphasis added].
Statements such as “There’s no charge unless we win your case” or “You pay us only
when we win” violate DR 2-101(E)(1)(c). These statements contradict the rule. Rather
than advising the public that in the event of an adverse verdict or decision the contingent
fee litigants are liable for payment of costs and expenses, such statements in essence
communicate that it won’t cost the public a dime to litigate. Statements such as “No fee
without recovery” or “You pay no fee unless you win” without explanation regarding
payment of costs also indicate that a client would not pay anything to litigate. Although
attorneys know that legal fees are different from costs and expenses, the public may not.
Therefore, the rule requires more disclosure.
Attorneys should be aware that this “won’t cost you a dime” approach is not acceptable in
Ohio. In Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44 (1984), an attorney was
publicly reprimanded for newspaper advertising that included the statement “If there is no
recovery, no legal fees are owed by our clients.” That sanction was upheld by the
Supreme Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). “The
advertisement makes no mention of the distinction between ‘legal fees’ and ‘costs,’ and
to a layman not aware of the meaning of these terms of art, the advertisement would
suggest that employing appellant would be a no-lose proposition in that his representation
in a losing cause would come entirely free of charge.” Zauderer, 471 U.S. at 652.
In Disciplinary Counsel v. Shane, 81 Ohio St. 3d 494 (1998), two attorneys were publicly
reprimanded for advertising on television “[T]here’s no charge unless we win your case.
What could be fairer?” “This case needs tons of research and we told him there’s no fee
unless we win.” “[W]e only charge if we win.* * * We always work that way.”
“[R]emember, you pay us only when we win. What could be fairer?” According to the
court, the advertisement in Shane suffered from the same deficiency as the advertisement
in Zauderer. “The commercials do not inform the public that, win or lose, clients who
enter contingent fee contracts are responsible for costs and expenses of their cases.”
Shane, 81 Ohio St. 3d at 497. The court offered the following advice to all members of
the bar. “In imposing this sanction we are also informing all members of the profession
that such advertisements, whether in newspapers, on television, or in the ‘yellow pages,’
are improper and should be either withdrawn or modified as soon as feasible to conform
with this decision.” Shane, 81 Ohio St. 3d at 498.
DR 2-101(E) actually sets forth two obligations. One obligation is addressed above—to
advise the public that a contingent fee litigant may be liable for paying costs and expenses
of litigation. The other obligation is to disclose whether percentages are computed before
or after deduction of costs and expenses. That obligation was not at issue in the Shane
case. These obligations under DR 2-101(E) should be met by attorneys whenever
statements regarding contingent fees are made in advertising.

Op. 98-9 3
To alleviate attorneys’ concerns regarding what must be said, the Board suggests that
statements such as “contingent fee clients are responsible for costs and expenses of
litigation” and “contingent fee percentages are computed before (or after) deduction of
costs and expenses” would suffice, without quoting the entire language of the rule within
the advertisement. This or similar language would alert the public to the fact that there are
litigation costs and expenses even in contingent fee contracts and would inform them of
whether the attorney’s percentage would be computed prior to or after costs and expenses
are deducted.
If attorneys find these statements too cumbersome, they have the alternative of not
mentioning contingent fees in the advertisement. Attorneys who advertise their services
have a choice. If contingent fee arrangements are mentioned, then the attorney has the
obligation under the rule to make the required statements. If the attorney does not wish to
make these statements, then the attorney should not advertise regarding contingent fees.
In conclusion, this Board advises that it is improper under DR 2-101(E)(1)(c) for a lawyer
who advertises regarding continent fees to use statements such as “There’s no charge
unless we win your case” or “You pay us only when we win” or any other phrase creating
the expectation that it costs a client nothing to litigate when there is no recovery. It is
also improper under DR 2-101(E)(1)(c) to advertise “No fee without recovery” or “You
pay no fee unless you win” unless the attorney adds the additional information required
under DR 2-101(E)(1)(c). A lawyer who advertises regarding contingent fees has an
obligation under the rule to advise the public that contingent fee clients are responsible
for costs and expenses of litigation and to disclose whether percentages are computed
before or after deduction of costs and expenses. Thus, for example, if a lawyer wishes to
state “You pay no legal fees unless you win,” the lawyer must also state “Contingent fee
clients are responsible for costs and expenses of litigation” and “Contingent fee
percentages are computed before (or after) deduction of costs and expenses” or make
other similar statements that fulfill the attorney’s obligations under the rule.
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.