Ohio Board Advisory Opinion Op 07-006

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2007-6
Issued August 10, 2007
SYLLABUS: A court appointed lawyer for an indigent criminal defendant is not
required to provide notice to the defendant that the lawyer does not maintain
professional liability insurance. A court appointed lawyer for an indigent criminal
defendant falls within the Rule 1.4(c)(3)(i) governmental entity exception to the
notice requirement of Rule 1.4(c).
OPINION: This opinion addresses whether the Ohio Rules of Professional
Conduct require a court appointed lawyer for an indigent criminal defendant to
notify a defendant if the lawyer does not maintain professional liability insurance.
Is a court appointed lawyer for an indigent criminal defendant
required pursuant to Rule 1.4(c) to provide notice to the defendant
that the lawyer does not maintain professional liability insurance?
Since July 1, 2001, Ohio lawyers who do not maintain professional liability
insurance are required to notify their clients and obtain acknowledgment of the
lawyer’s lack of professional liability insurance. The notice must be signed by the
lawyer and the acknowledgment of receipt of the notice must be signed by the
client. This requirement is set forth in Rule 1.4(c) of the Ohio Rules of
Professional Conduct which became effective February 1, 2007 and prior to that
was set forth in now former DR 1-104 of the Ohio Code of Professional
Responsibility.
Rule 1.4
(c) A lawyer shall inform a client at the time of the client’s engagement
of the lawyer or at any time subsequent to the engagement if the lawyer does not
maintain professional liability insurance in the amounts of at least one hundred
thousand dollars per occurrence and three hundred thousand dollars in the
aggregate or if the lawyer’s professional liability insurance is terminated. The
notice shall be provided to the client on a separate form set forth following this
rule and shall be signed by the client.

Op. 2007-6 2
(1) A lawyer shall maintain a copy of the notice signed by the
client for five years after termination of representation of the client.
(2) A lawyer who is involved in the division of fees pursuant to
Rule 1.5(e) shall inform the client as required by division (c) of this rule
before the client is asked to agree to the division of fees.
(3) The notice required by division (c) of this rule shall not apply
to either of the following:
(i) A lawyer who is employed by a governmental entity
and renders services pursuant to that employment;
(ii) A lawyer who renders legal services to an entity that
employs the lawyer as in-house counsel.
NOTICE TO CLIENT
Pursuant to Rule 1.4 of the Ohio Rules of Professional Conduct, I am
required to notify you that I do not maintain professional liability (malpractice)
insurance of at least $100,000 per occurrence and $300,000 in the aggregate.
_____________________
Attorney’s Signature
CLIENT ACKNOWLEDGEMENT
I acknowledge receipt of the notice required by Rule 1.4 of the Ohio Rules
of Professional Conduct that [insert attorney’s name] does not maintain
professional liability (malpractice) insurance of at least $100,000 per occurrence
and $300,000 in the aggregate.
_____________________
Client’s Signature
_____________________
Date
The underlying reason for requiring notice and acknowledgement of a lawyer’s
lack of professional liability insurance is client protection. Comment [9] to Rule
1.4 explains that “[t]he client may not be aware that maintaining professional
liability insurance is not mandatory and may well assume that the practice of law
requires that some minimum financial responsibility be carried in the event of

Op. 2007-6 3
malpractice. Therefore, a lawyer who does not maintain certain minimum
professional liability insurance shall promptly inform a prospective client or
client.”
There are two exceptions to Rule 1.4(c). A lawyer employed by a governmental
entity and who renders services pursuant to that employment is not required to
provide notice of a lack of maintaining professional malpractice insurance. And,
a lawyer employed as in-house counsel who renders legal services to the
employing entity is not required to provide such notice. These exceptions are
established in divisions (c)(3)(i) and (ii) of Rule 1.4.
Comment [8] to Rule 1.4 explains that “[a]lthough it is in the best interest of the
lawyer and the client that the lawyer maintain professional liability insurance or
another form of adequate financial responsibility, it is not required in any
circumstance other than when the lawyer practices as part of a legal professional
association, corporation, legal clinic, limited liability company, or registered
partnership.
It is the Board’s view that a lawyer appointed by a court to represent an indigent
criminal defendant falls within the governmental entity exception in Rule
1.4(c)(3)(i) and therefore is not required to provide notice of lack of professional
liability insurance. No purpose would be served by requiring such disclosure. A
court appointed criminal defense lawyer is providing legal representation for
which indemnification for malpractice is provided by law. Ohio law provides that
if a malpractice action is filed against a lawyer, who accepts court appointments
to represent indigent criminal defendants, the lawyer shall be indemnified for any
judgment awarded in the malpractice action or the amount negotiated in
settlement of the malpractice claim, and for court costs or legal fees incurred in
defense of the malpractice claim. Ohio Rev.Code Ann. §120.41 (West 2002).
In conclusion, the Board advises as follows. A court appointed lawyer for an
indigent criminal defendant is not required to provide notice to the defendant that
the lawyer does not maintain professional liability insurance. A court appointed
lawyer for an indigent criminal defendant falls within the Rule 1.4(c)(3)(i)
governmental entity exception to the notice requirement of Rule 1.4(c).
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 Ohio Rules of Professional Conduct,
the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.