Ohio Board Advisory Opinion Op 99-005

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 99-5
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded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 under DR 2-101(F)(1) of the Ohio Code of Professional
Responsibility for a lawyer to personally distribute law firm brochures at a street corner,
at a booth at a fair, at a church festival, or at other similar events. It is improper under
DR 2-101(F)(1) and DR 1-102(A)(2) for a lawyer to direct another individual to
personally distribute on his or her behalf law firm brochures at a street corner, at a fair, at
a church festival, or at other similar events.
The advice within this opinion should not be taken out of context; rather, it should be
tempered with an understanding of all the rules within the Code. For example, there
would be nothing per se improper about a lawyer giving a brochure in person to a client
or to a person who asks for a brochure. There would be nothing improper about a
brochure being mailed to the general public. There would be nothing per se improper
about a brochure being included in a direct mail solicitation in compliance with the rules.
There would be nothing per se improper about a law firm brochure appearing in a counter
display at a fair, church festival or other similar event. There would be nothing improper
per se about a law firm brochure appearing in a counter display of a business or
professional office provided there was no improper referral relationship. There would be
nothing per se improper about a lawyer cooperating with permitted activities of
organizations identified in DR 2-103 (D)(1) through (4) that in some manner might
involve the dissemination of brochures.
OPINION: This opinion addresses questions regarding the distribution of law firm
brochures.
1. Is it proper for a lawyer to personally distribute law firm brochures at a
street corner, at a booth at a fair, at a church festival, or at other similar
events?
2. Is it proper for a lawyer to direct another individual to personally
distribute law firm brochures at a street corner, at a fair, at a church
festival, or at other similar events?
Advertising is an acknowledged way of informing the public as to the availability of legal
services. Canon 2 of the Ohio Code of Professional Responsibility broadly proclaims
that “A LAWYER SHOULD ASSIST THE LEGAL PROFESSION IN FULFILLING
ITS DUTY TO MAKE LEGAL COUNSEL AVAILABLE.” Ethical Consideration 2-9

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informs lawyers that “the Disciplinary Rules recognize the value of giving assistance in
the selection process through forms of advertising.”
A brochure is a form of advertisement permitted under the Ohio Code of Professional
Responsibility.
DR 2-101(B) Subject to the limitations contained in these rules:
(3) Brochures or pamphlets containing biographical data
and informational data that is acceptable under these
rules may be disseminated directly to clients, members
of the bar, or others.
The rule provides that brochures may be “disseminated directly” but the rule does not
specify the permitted methods of dissemination. Other rules within the Code provide
guidance.
DR 2-101(F)(1) prohibits in-person solicitation. When a lawyer stands at a street corner,
at a booth at a fair, at a church festival, or at a similar event and passes out law firm
brochures to the general public, is that a dissemination permitted under DR 2-101(B)(3)
or is it a form of in-person solicitation prohibited under DR 2-101(F)(1)?
DR 2-101(F)(1) 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.
A summary of the DR 2-103 and DR 2-104 exceptions to in-person solicitation is as
follows: DR 2-103 [lawyer may request referrals from a lawyer referral service]; DR 2-
104 [a lawyer who gives unsolicited advice to a non-lawyer may not accept employment
resulting from that advice except for: employment by a close friend, relative, former
client, or client; employment that results from participation in the activities of a DR 2-
103(D)(1) through (4) organizations; employment that results from public speaking or
writing for publication; employment that results from those contacted for the purpose of
obtaining their joinder in a class action.] In counterbalance, DR 2-104(B) states that
“[n]othing in this rule [DR 2-104] prohibits a lawyer from accepting employment
received in response to the lawyer’s own advertising, provided the advertising is in
compliance with DR 2-101.”
In this Board’s view “disseminated directly” does not mean unrestrained in-person
distribution. The fact that the attorney has a brochure in hand does not neutralize or
nullify the occurrence of the in-person interaction between the lawyer and the recipient of
the brochure. In-person distribution of a law firm brochure by a lawyer to members of
the public at a street corner, at a booth at a fair; at a church festival, or at a similar event
is a form of in-person solicitation that DR 2-101(F)(1) intends to prohibit. Further, a
lawyer should not direct another individual to personally distribute on his or her behalf
law firm brochures at a street corner, at a fair, at a church festival, or at other similar
events because DR 1-102(A)(2) prohibits a lawyer from circumventing a disciplinary rule
through the actions of another.

Opinion 99-5 3
Nevertheless, based upon other rules within the Code, it is the Board’s view that
“disseminated directly” encompasses and permits a wide variety of other types of
distribution. Under DR 2-101(B)(1) “[a] lawyer or law firm may advertise services
through newspapers, periodicals, trade journals, ‘shoppers,’ and similar print media,
outdoor advertising, radio and television, and written communication.” Brochures could
be included in an advertising bag along with other advertisements for distribution on
doorsteps of homes and businesses. Brochures could be mailed to the general public.
Brochures could be included in an envelope along with direct mail solicitation letters
provided that the letters are in compliance with DR 2-101(F)(2). Brochures could be
disseminated in counter displays at public places as well as private businesses provided
there are no relationships involving improper compensation or rewards for referrals of
clients. These methods of dissemination do not involve in-person solicitation.
For case law addressing in-person solicitation see Ohralik v. Ohio State Bar Ass’n, 436
U.S. 447, 449 (1978), (holding that “the State--or the Bar acting with state authorization--
constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary
gain, under circumstances likely to pose dangers that the State has a right to prevent.”); In
re Primus, 436 U.S. 412, 437-38 (1978) (stating that “[i]n the context of political
expression and association, however, a State must regulate with significantly greater
precision”; Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 641-42 (1985)
(distinguishing features of in-person solicitation from print advertising ) and Shapero v.
Kentucky Bar Ass’n, 486 U.S. 466, 474-77 (1988) (distinguishing features of in-person
solicitation from targeted direct mail solicitation).
In conclusion, the Board advises that it is improper under DR 2-101(F)(1) of the Ohio
Code of Professional Responsibility for a lawyer to personally distribute law firm
brochures at a street corner, at a booth at a fair, at a church festival, or at other similar
events. It is improper under DR 2-101(F)(1) and DR 1-102(A)(2) for a lawyer to direct
another individual to personally distribute law firm brochures at a street corner, at a fair,
at a church festival, or at other similar events.
The advice within this opinion should not be taken out of context; rather, it should be
tempered with an understanding of all the rules within the Code. For example, there
would be nothing per se improper about a lawyer giving a brochure in person to a client
or to a person who asks for a brochure. There would be nothing improper about a
brochure being mailed to the general public. There would be nothing per se improper
about a brochure being included in a direct mail solicitation in compliance with the rules.
There would be nothing per se improper about a law firm brochure appearing in a counter
display at a fair, church festival or other similar event. There would be nothing improper
per se about a law firm brochure appearing in a counter display of a business or
professional office provided there was no improper referral relationship. There would be
nothing per se improper about a lawyer cooperating with permitted activities of
organizations identified in DR 2-103 (D)(1) through (4) that in some manner might
involve the dissemination of brochures.
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

Opinion 99-5 4
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.