Ohio Board Advisory Opinion Op 02-006

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 2002-6
Issued June 14, 2002
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded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: When an Ohio attorney learns that a notice of appeal is filed in an Ohio
court, the attorney may contact the Ohio counsel for either the appellant or appellee to
convey an interest in serving as appellate counsel. The attorney-to-attorney contact may
be in person, by telephone, mail, or e-mail.
Ohio disciplinary rules do not prohibit an Ohio attorney from contacting by telephone,
mail, or e-mail the out-of-state counsel for an out-of-state corporation to offer assistance
as local counsel in a matter filed in Ohio; however, such contact would be improper if in
violation of the rules of the other state. Advice regarding another state’s rules may be
sought from the appropriate authority in that state. This Board’s authority under Gov.Bar
R. V § 2(C) is to advise only upon Ohio’s rules.
Ohio disciplinary rules do not prohibit an Ohio attorney from using direct mail
solicitation to inquire whether an out-of-state corporate party is represented by counsel,
provided that the solicitation complies with the requirement of DR 2-101(F)(2) and DR
2-101(F)(4); however, such contact would be improper if in violation of the rules of the
other state. Also, Ohio disciplinary rules do not prohibit an Ohio attorney from using e-
mail communication to inquire whether an out-of-state corporate party is represented by
counsel, provided that the e-mail solicitation complies with the direct mail solicitation
restrictions as completely as possible within the limits of the e-mail technology; however
such conduct would be improper if in violation of the rules of the other state. The use of
in-person or telephone communication to inquire whether an out-of-state corporate party
is represented by counsel is improper under DR 2-101(F)(1).
OPINION: This opinion addresses questions regarding an attorney soliciting legal
business from other attorneys.
1. When an Ohio attorney learns that a notice of appeal is filed in an
Ohio court, is it proper for the attorney to contact by telephone, fax,
mail, or e-mail the Ohio counsel for either the appellant or appellee to
convey an interest in serving as appellate counsel?
2. When an Ohio attorney learns that an out-of-state corporation is named
as a defendant in a civil suit in Ohio, is it proper for the attorney to

Op. 2002-6 2
contact by telephone, fax, mail, or e-mail the corporation’s out-of-state
counsel to offer assistance as local counsel?
3. When an Ohio attorney learns that an out-of-state corporation is named
as a defendant in a civil suit in Ohio but is unaware of whether the
defendant has counsel, is it proper for the attorney to contact by
telephone the corporate party to obtain information as to the identity of
the party’s counsel in a matter?
The inquiring lawyer learns of cases filed in court either through reviewing a printed
court index or a court Web Site index. When a notice of appeal is filed in the court, the
inquiring lawyer would like to contact the Ohio counsel listed as representing the
appellee or appellant to convey an interest in serving as appellate counsel in the matter.
When an out-of-state corporation is sued in an Ohio Court, the inquiring lawyer is
interested in contacting the corporation’s out-of-state lawyer to convey an interest in
serving as local counsel in the matter. The lawyer asks whether such communication is
proper.
Question One
When an Ohio attorney learns that a notice of appeal is filed in an Ohio
court, is it proper for the attorney to contact by telephone, fax, mail, or e-
mail the Ohio counsel for either the appellant or appellee to convey an
interest in serving as appellate counsel?
Communications by a lawyer are regulated by the publicity rules of the Ohio Code of
Professional Responsibility, DR 2-101 through 2-105. Several of these rules address a
lawyer’s communications with other lawyers. DR 2-102(A)(1) & (2) and DR 2-
105(A)(3) permit lawyers to announce availability to provide legal services.
DR 2-102(A) A lawyer may use or participate in the use of professional
cards, professional announcement cards, office signs, letterheads, or
similar professional notices or devices, that are in dignified form and
comply with the following:
(1) A professional card of a lawyer identifying the lawyer by name
and as a lawyer and giving the lawyer’s addresses, telephone
numbers, law firm name, and any information permitted under
DR 2-105. A professional card of a law firm may also give the
names of members and associates and may be used for
identification.
(2) A brief professional announcement card stating new or
changed associations or addresses, change of firm name, or
similar matters pertaining to the professional offices of a

Op. 2002-6 3
lawyer or law firm. It shall not state the nature of the practice
except as permitted under DR 2-105.
DR 2-105(A)(3) A lawyer available to act as a consultant to or as an
associate of other lawyers in a particular branch of law or legal service
may distribute to other lawyers and publish in legal journals a dignified
announcement of such availability, but the announcement shall not contain
a representation of special competence or experience.
DR 2-101(B) Subject to the limitations contained in these rules: (3)
Brochures or pamphlets containing biographical and informational data
that is acceptable under these rules may be disseminated directly to clients,
members of the bar, or others.
Thus, the use of professional announcement cards or other written communication from
lawyers to lawyers announcing availability to provide legal services is appropriate under
these rules. See e.g., Ohio SupCt, Bd Comm’rs on Grievances and Discipline, Op. 87-
004 (1987) (advising “[a] lawyer may announce his or her availability to act as a
consultant to, or associate of other lawyers, provided the announcement complies with
the Code of Professional Responsibility.”)
Lawyer to lawyer professional announcement cards or other similar written
communications are to be in dignified form as required under DR 2-102(A) and DR 2-
105(A)(3). Announcements or written communications appearing to “hustle” business
from a lawyer who is representing a client in a particular matter are not likely to result in
employment of the soliciting lawyer.
Lawyer to lawyer professional announcement cards or other lawyer to lawyer written
communications are subject to the general rules that govern publicity, such as the
requirement of DR 2-101(A)(1) that communication not contain any false, fraudulent,
misleading, deceptive, self-laudatory, or unfair statement. However, lawyer to lawyer
written communications are not subject to the specific restrictions placed on direct mail
solicitation in DR 2-101(F)(2), (F)(4), or (H)(1) for these rules protect laypersons who
are subjects of targeted direct mail communications by lawyers, not lawyer to lawyer
communications. DR 2-101(F)(2) applies to communication addressed to “persons or
groups of persons who may be in need of specific legal service by reason of a
circumstance, condition, or occurrence that is known or, upon reasonable inquiry, could
be known to the soliciting lawyer or law firm.” DR 2-101(F)(4) applies to
communication mailed to a party who has been named a defendant in a civil action. DR
2-101(H)(1) applies to communication sent to a prospective client or relative of a
prospective client within thirty days of an accident or disaster that gives rise to a potential
claim for personal injury or wrongful death.
Lawyer to lawyer communication by telephone or in person is also ethically appropriate
to convey a lawyer’s availability to provide legal services. DR 2-101(F)(1) does not
apply to a lawyer’s communication with another lawyer. [DR 2-101(F)(1): “A lawyer

Op. 2002-6 4
shall not make any solicitation of legal business in person or by telephone, except as
provided in DR 2-103 and DR 2-104.”]
Further, under the ethical rules, there is no bar to a lawyer sending an e-mail to another
lawyer announcing availability to provide legal services. As with regular mail, a
lawyer’s e-mail to another lawyer is not subject to targeted direct mail solicitation
restrictions.
The sending of unsolicited facsimiles announcing a lawyer’s availability to provide legal
services is not recommended. The sending of unsolicited facsimiles announcing legal
services may implicate both state and federal law prohibiting facsimile transmission of
unsolicited advertisements.
Under state law, “[n]o person shall transmit an advertisement to a facsimile device unless
the person has received prior permission from the owner or, if the device is leased, from
the lessee of the device to which the message is to be sent to transmit the advertisement;
or the person has a pre-existing business relationship with such owner or lessee.” Ohio
Rev. Code Ann. § 4931.55(B) (West 1995). Under state law, “‘[a]dvertisement’ means a
message or material intended to cause the sale of realty, goods, or services.” Ohio Rev.
Code Ann. § 4931.55(A)(1) (West 1995).
Under federal law, “[i]t shall be unlawful for any person within the United States—to use
any telephone facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C)(1994).
Under federal law, “[t]he term ‘unsolicited advertisement’ means any material
advertising the commercial availability or quality of any property, goods, or services
which is transmitted to any person without that person’s prior express invitation or
permission.” 47 U.S.C. § 227(a)(4)(1994).
In conclusion, the Board advises as follows. When an Ohio attorney learns that a notice
of appeal is filed in an Ohio court, the attorney may contact the Ohio counsel for either
the appellant or appellee to convey an interest in serving as appellate counsel. The
attorney-to-attorney contact may be in person, by telephone, mail, or e-mail.
Question Two
When an Ohio attorney learns that an out-of-state corporation is named as
a defendant in a civil suit in Ohio, is it proper for the attorney to contact
by telephone, fax, mail, or e-mail the corporation’s out-of-state counsel to
offer assistance as local counsel?
Ohio disciplinary rules do not prohibit an Ohio attorney from contacting by telephone,
mail, or e-mail the out-of-state counsel for an out-of-state corporation to offer assistance
as local counsel in a matter filed in Ohio; however, such contact would be improper if in
violation of the rules of the other state. Advice regarding another state’s rules may be

Op. 2002-6 5
sought from the appropriate authority in that state. This Board’s authority under Gov.Bar
R. V § 2(C) is to advise only upon Ohio’s rules.
Question Three
When an Ohio attorney learns that an out-of-state corporation is named as
a defendant in a civil suit in Ohio but is unaware of whether the defendant
has counsel, is it proper for the attorney to contact by telephone the
corporate party to obtain information as to the identity of the party’s
counsel in a matter?
When an Ohio attorney learns that an out-of-state corporation is named as a defendant in
a civil suit in Ohio but is unaware of whether the defendant has counsel, the attorney
should not contact in person or by telephone a corporate party to inquire whether the
corporation is represented by counsel. DR 2-101(F)(2) states “[a] lawyer shall not make
any solicitation of legal business in person or by telephone, except as provided in DR 2-
103 and DR 2-104.” No exceptions in DR 2-103 and 2-104 are applicable to this inquiry.
Contact by direct mail is proper under Ohio’s rules if the applicable direct mail
solicitation restrictions are heeded; provided that, the conduct is proper under the rules of
the other state. DR 2-101(F)(2) applies to communication addressed to “persons or
groups of persons who may be in need of specific legal service by reason of a
circumstance, condition, or occurrence that is known or, upon reasonable inquiry, could
be known to the soliciting lawyer or law firm.” DR 2-101(F)(4) applies to
communication mailed to a party who has been named a defendant in a civil action. DR
2-101(H)(1) applies to communication sent to a prospective client or relative of a
prospective client within thirty days of an accident or disaster that gives rise to a potential
claim for personal injury or wrongful death. The restrictions of DR 2-101(F)(2) and DR
2-101(F)(4) are applicable to the question presented. The attorney knows that the
corporation is in need of specific legal services and the corporation is named as a
defendant in a civil suit.
Contact by e-mail is also proper under Ohio’s rules, if the applicable direct mail
solicitation restrictions are heeded; provided that, the conduct is proper under the rules of
the other state. An e-mail inquiring whether a corporate defendant is represented by
counsel should comply with the direct mail restrictions as completely as possible within
the limits of the e-mail technology. Since there is no envelope on which to place the
required DR 2-101(F)(2)(e) recital “ADVERTISEMENT ONLY,” it will satisfy the rule
to place this language on the Subject Line of the e-mail as well as in the text of the e-
mail. If possible, this language should appear in no smaller than 10 point type and in red
ink. If it is not possible, customary black type will suffice on the e-mail subject line and
in the e-mail text for the “ADVERTISEMENT ONLY” recitals.
In conclusion, to Question Three, the Board advises as follows. Ohio disciplinary rules
do not prohibit an Ohio attorney from using direct mail solicitation to inquire whether an
out-of-state corporate party is represented by counsel, provided that the solicitation

Op. 2002-6 6
complies with the requirement of DR 2-101(F)(2) and DR 2-101(F)(4); however, such
contact would be improper if in violation of the rules of the other state. Also, Ohio
disciplinary rules do not prohibit an Ohio attorney from using e-mail communication to
inquire whether an out-of-state corporate party is represented by counsel, provided that
the e-mail solicitation complies with the direct mail solicitation restrictions as completely
as possible within the limits of the e-mail technology; however such conduct would be
improper if in violation of the rules of the other state. The use of in-person or telephone
communication to inquire whether an out-of-state corporate party is represented by
counsel is improper under DR 2-101(F)(1).
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.