Ohio Board Advisory Opinion Op 92-002

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 92-2
Issued February 14, 1992
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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 through DR 2-105.]
SYLLABUS: The Code of Professional Responsibility does not ban direct mail communication
from named plaintiffs and their counsel to potential or actual class members during the pendency of
a class action, nor does the Code prohibit the attorney from accepting employment in response to
such advertising. However, such communication must be in compliance with Disciplinary Rules 2-
101 through 2-105. Further, since communications in class action suits are not governed solely by
the Code of Professional Responsibility such communications must comply with applicable
statutes, civil rules of procedure, and case law. Within this framework of restrictions, out-of-state
attorneys representing limited partners in class action litigation against a general partner may
communicate with potential or actual class members in Ohio through direct mail.
OPINION: The question presented is whether out-of-state attorneys representing limited partners
in class action litigation against a general partner, may communicate with members of the class in
Ohio through direct mail.
It is well settled that an attorney may communicate with potential clients through direct mail. Such
authorization is found within Disciplinary Rule 2-101(B) of the Code of Professional
Responsibility. Disciplinary Rule 2-101 (B) states that
[i]n order to facilitate the process of informed selection of a lawyer by potential
consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-102
through DR 2-105, information in print media, in written or printed material
distributed to consumers through the mail or otherwise; or over radio or television.
The information disclosed by the lawyer in such publication or broadcast shall
comply with DR 2-101 (A).

Op. 92-2 2
The constitutional basis for the disciplinary rule is established in case law. See Shapero v.
Kentucky Bar Ass'n, 486 U.S. 466 (1988) (prohibiting categorical bans on targeted direct mail
advertising); and In re Primus, 436 U.S. 412 (1978) (allowing letter to lay person regarding
availability of free legal assistance from a nonprofit organization with which the lawyer was
affiliated). In keeping with the disciplinary rule and case law, this Board has in the past
acknowledged the propriety of direct mail communication with potential clients so long as the
communications are in compliance with disciplinary rules. See Ohio Sup.Ct, Bd. of Comm’rs on
Grievances and Discipline, Ops. 91-4 (1991), 90-21 (1991), and 88-3 (1988).
Several related provisions of Disciplinary Rule 2-104 support the view that it is not improper for a
lawyer to communicate with potential members of class actions suits. These provisions are set
forth below.
DR 2-104 (A) A lawyer who has given unsolicited advice to a layman that he
should obtain counselor take legal action shall not accept employment resulting
from that advice, except that:
(A) (5) If success in asserting rights or defenses of his client in litigation in the
nature of a class action is dependent upon the joinder of others, a lawyer may accept,
but shall not seek, employment from those contacted for the purposes of obtaining
their joinder.
(B) Nothing in this Rule prohibits a lawyer from accepting employment received in
response to his own advertising, provided such advertising is in compliance with DR
2-101.
When read by itself, Disciplinary Rule 2-104 (A) (5) may engender some confusion since it is both
permissive and restrictive: A lawyer may accept employment from those contacted for the
purposes of obtaining their joinder, but may not seek employment from those contacted. When
read along with Disciplinary Rule 2-104 (B) a reasonable interpretation is that the “may not seek
employment” prohibition of Disciplinary Rule 2-104 (A) (5) was not intended to prohibit an
attorney from direct mail communication with potential members of a class action suit nor from
accepting employment in response to the advertising.

Op. 92-2 3
It should be noted that communications in class action suits are not governed solely by the Code of
Professional Responsibility. The Model Rules acknowledge this by stating that the Model Rules do
not prohibit "communications authorized by law such as notice to members of a class in class
action litigation.” See Model Rule 7.2 comment.
Under Rule 23 (d) of the Federal Rules of Civil Procedure courts have authority to make
appropriate orders in class actions, including orders regarding class communications. However,
such authority is not without limits. In Gulf Oil Co. v. Bernard, the Supreme Court considered the
scope of a district court's authority to limit communications from named plaintiffs and their counsel
to prospective class members, during the pendency of a class action and held that the District Court
exceeded its authority under the Federal Rules of Civil Procedure and abused its discretion. 452
U.S. 89, 91, 104 (1981).
The district court's order, inter alia, imposed a complete ban on all communications concerning the
class action between parties or their counsel and any actual or potential class member who was not
a formal party, without the prior approval of the court. Id. at 95. Following Gulf Oil, gag orders
that create obstacles to class action litigation have been disfavored. See Williams v. United States
District Court, 658 F.2d (6th Cir.1981), cert. denied, 454 U.S. 1128 (1981); Marmol v. Adkins, 655
F.2d (5th Cir. 1981). However, some restrictions on communications are permissible; for example,
when there is statutory authority, Champion International Corp. v. McKenna, 747 F.2d 1211 (8th
Cir. 1984) or when there is evidence of abuse, Reed v. American Steamship Co., 682 F. Supp. 333
(E.D. Mich. 1988).
In Gulf Oil, the Court acknowledged that class actions serve important functions in the civil justice
system, namely, disposing of common interests or common questions of law or fact in a single
lawsuit and vindicating rights of individuals which if litigated individually the cost would consume
the result. 452 U.S. at 99, 100 n.11 [citing Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326,
338 (1980) and Rodgers v. United States Steel Corp., 508 F.2d 152, 163 (3rd Cir.), cert. denied,
423 U.S. 832 (1975)]. The court also acknowledged there were potential abuses associated with
communications to class members such as heightened susceptibilities of nonparty class members
and increased opportunities, of parties or counsel to increase participation in the proceeding. Id. at
100 n.12 [citing Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782 (ED La. 1977)]. However, the
Court stated that the mere possibility of abuses in class action suits did not justify routine adoption
of a communications ban that interferes with the formation of a class or the prosecution of a class
action in accordance with Federal Rules of Procedure. Id. at 104.

Op. 92-2 4
The possibility of abuses in class action suits does warrant a review of the publicity provisions of
the Code of Professional Responsibility. The publicity provisions guard against such abuses. As
already stated, Disciplinary Rule 2-101 (B) allows direct mail communication subject to
Disciplinary Rules 2-102 through 2-105 and if in compliance with Disciplinary Rule 2-101 (A).
The requirement of Disciplinary Rule 2-101 (A) is that a lawyer may not “use, or participate in the
use of, any form of communication containing a false, fraudulent, misleading, or deceptive
statement or claim.” Disciplinary Rule 2-101 (C) describes false and misleading communication.
DR 2-101(C) A communication is false and misleading if it:
1. Contains a material misrepresentation of fact or law, or omits a fact necessary to
make the statement considered as a whole not materially misleading;
2. Is likely to create an unjustified expectation about results the lawyer can achieve,
or states or implies that the lawyer can achieve results by means that violate the
Code of Professional Responsibility or other law; or
3. Is subjectively self-laudatory, or compares a lawyer's services with other
lawyers' services, unless the comparison can be factually substantiated.
Communication that states or implies that an out-of-state lawyer has special abilities to get results
or special competence is false and misleading. Communication that unverifiably praises self and
denigrates other lawyers is false and misleading. Communication that indicates that a pending case
would be decided other than on its merits is also misleading and inappropriate.
As set forth in DR 2-101 (B), direct mail advertising in addition to complying with DR 2-101 (A) is
subject to DR 2-102 through DR 2-105. These rules should be reviewed thoroughly by attorneys.
Disciplinary Rule 2-102, inter alia, regulates a lawyer's or law firm's use of letterhead. Disciplinary
Rule 2-103 sets forth rules regarding recommendations of professional employment. Disciplinary
Rule 2-103 (A) provides that “[a] lawyer shall not recommend employment, as a private
practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice
regarding employment of a lawyer, except as provided in DR 2-101.” This rule would apply to
communications between an attorney and potential or actual members of a class. Disciplinary Rule
2-104 has already been addressed in this opinion. Disciplinary Rule 2-105, with certain exceptions
not applicable here, prohibits a lawyer and a law firm from holding themselves out as specialists.
Disciplinary Rule 2-105 (A) (5) allows a lawyer to state that his or her law practice consists in large
part or is limited to a field or fields of law.

Op. 92-2 5
The disciplinary rules are applicable to all out-of-state lawyers regardless of whether they are
licensed in states that follow the Model Code or the Model Rules. Both the Model Code and the
Model Rules prohibit a lawyer from practicing law in a jurisdiction where to do so would be in
violation of regulations of the profession in that jurisdiction. See Model Code of Professional
Responsibility DR 3-101 (B) and Model Rules of Professional Conduct Rule 5.5 (a).
The Board is aware of an advisory opinion issued by the American Bar Association advising that
“[t]he sending of a letter by an attorney to potential members of a class action informing them of a
possible legal claim is not prohibited under the Model Code of Professional Responsibility if the
lawyer's intent is to strengthen the case of his client and if the lawyer will not represent the
recipients of the letter." ABA, Standing Comm. on Ethics and Professional Responsibility,
Informal Op. 1469, (1981). The narrowly tailored advice of this opinion is of limited guidance to
the Board in answering the question presented for two reasons. One reason is that the committee
did not clearly set forth whether the fact that the lawyer declined to represent any recipient made
the direct communication proper. Secondly, the opinion was issued one month after Gulf Oil but
did not address the Gulf Oil decision. In the years since Gulf Oil, one state's ethics committee
advised that a lawyer may send letters to prospective members of a class action suit provided the
letters conform to the advertising rules and the lawyer does not contact individuals by telephone or
in person. Alabama State Bar, Op. RO 89-57 (1989).
In conclusion, this Board's advice is that the Code of Professional Responsibility does not ban
direct mail communication from named plaintiffs and their counsel to potential or actual class
members during the pendency of a class action, nor does the Code prohibit the attorney from
accepting employment in response to such advertising. However, such communication must be in
compliance with Disciplinary Rules 2-101 through 2-105. Further, since communications in class
action suits are not governed solely by the Code of Professional Responsibility such
communications must comply with applicable statutes, civil rules of, procedures, and case law.
Within this framework of restrictions, out-of-state attorneys representing limited partners in class
action litigation against a general partner may communicate with potential or actual class members
in Ohio through direct mail.
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.