Ohio Board Advisory Opinion Op 90-021

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 90-21
October 12, 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[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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.]
[Not current-subsequent rule amendments to DR 2-101, eff. Jan. 1, 1993 and Aug. 16, 1993, Jan. 1, 2000.]
SYLLABUS: A lawyer or law firm may ethically use a targeted direct mail campaign to solicit
legal business by sending truthful and nondeceptive letters to potential clients known to need legal
services.
OPINION: We have before us your request for an advisory opinion regarding the propriety of a
lawyer soliciting potential clients for representation in criminal matters. According to your request
you intend to send out a letter offering to represent these potential clients.
The United States Supreme Court in Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988),
made it clear that a state may not, consistent with the First and Fourteenth Amendments,
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 further stated that the recipient of such advertising is not faced with the coercive presence
of a trained advocate or the pressure for an immediate yes-or-no answer to the representation offer,
but can simply put the letter aside to be considered later, ignored, or discarded. Id. at 475. The
Shapero court rejected Kentucky's arguments of abuse by overreaching and undue influence and
found that targeted direct mail solicitation provides a written record of the communication that can
regulate such potential abuses. Id. at 476.
In light of the Shapero case, DR 2-101 (B) does permit a direct mail campaign. It constitutes
printed material distributed to potential clients who need to be informed of available legal services.

Op. 90-21 2
However, if an attorney chooses to solicit in this fashion there can be no false, fraudulent,
misleading, or deceptive statement or claim made. Code of Professional Responsibility, DR 2-101
(A). Also, the lawyer may not claim or imply special competence or experience in a field of law
through use of the terms "specializes” or otherwise unless he works in the areas of Patent,
Trademark or Admiralty law. Code of Professional Responsibility. DR 2-105 (A). These
restrictions should be read in light of the U.S. Supreme Court's decision in Peel v. Attorney
Registration and Disciplinary Commission of Illinois, 107 LE2d 182, 110 S Ct 731 (1990).
The ABA after Shapero amended Model Rule 7.3 to protect the potential client. Its provisions
prohibit a lawyer from soliciting a prospective client by written or telephone contact if the client
has made known to the lawyer a desire not to be solicited or if the solicitation involves coercion,
duress, or harassment. ABA Model Rule 7.3. Although Ohio did not adopt the Model Rule, the
rule provides precautionary guidelines for attorneys desiring to solicit clients through targeted
direct mail. In addition, many states require the inclusion of the words "Advertising Material" on
the envelope and that the targeted mail materials be filed.
We have issued two earlier advisory opinions containing guidelines on lawyer advertising. In
response to a 1989 request this Board found that a lawyer was prohibited from using telemarketing
as a form of advertising. Telemarketing is an intrusive form of solicitation that creates the potential
for overreaching and is an invasion of privacy which places undue pressure on the potential client
for an immediate answer. Board of Commissioners Op. 90-2. In Op. 88-27, the Board stated that
lawyers are permitted to advertise in the Talking Yellow Pages (TYP). TYP is primarily a form of
advertising and there is nothing in DR 2-103 (E) that prohibits a lawyer from accepting
employment received in response to his own advertising. The Board permitted this practice based
on the relaxation of the rules regarding lawyer advertising following the Shapero decision.
In conclusion, it is our opinion and you are so advised that a lawyer or law firm may advertise their
services by mail to specific clients who may need the services of an attorney provided the
advertisement does not contain false, fraudulent, misleading or deceptive statements or claims.
Attorneys who choose to use direct mail should review DR 2-101(c), defining false or misleading
communication. Those charged with a crime may be more vulnerable to suggestion or promises of
performance

Op. 90-21 3
than an ordinary person. An attorney who targets such potential clients should be careful not to
frighten or misinform them or misrepresent the burden of proof that the government bears. The
attorney must take care not to interfere with an existing or ongoing attorney-client relationship.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility.