Unauthorized Practice; Advertising; Referrals; Solicitation Flashcards
Unauthorized Practice of Law
- To practice law in OH, one must be licensed by the supreme court .
- “Unauthorized” Practice: Offering advice without a license
- Unauthorized practice is a disciplinary offense (if a lawyer) as well as a criminal offense.
- “Unauthorized” Practice: Offering advice without a license
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Exceptions Permitting Practice for Lawyers Licensed Outside of OH
- Pro Hac Vice Admission: Attorney can appear for one case
- Association with Local Counsel: Local counsel must actively participate in the case
- Work for Client Who Resides in a Different Jurisdiction: Attorney is physically in OH, but does work for client in another state where attorney is licensed.
- In-House Counsel: Can serve as counsel to a in house counsel, as long as legal services are not provided to anyone else
Advertising
Lawyers may advertise for clients in a variety of media but are subject to some restrictions.
1. NO False or Misleading Statements
- A lawyer must not make a false or misleading communication about his/her services.
- Even truthful statements can be misleading if there is a substantial likelihood that another would adopt a conclusion unsupported by facts.
Example 33: Attorney puts information about his biggest victories in an advertisement, and includes a list of cases where the clients were awarded over $1 million. This could be misleading if it is not representative of the Attorney’s work as a whole. (Editor’s Note: Prof. Robertson mistakenly says “client’s work.”) Here, a disclaimershould be included stating that the cases listed are not representative of Attorney’s work in general.
2. Firm Names
- Can use attorneys’ last names for firm name
Example 34: Sam Smith and Jane Jones practice together in a firm. They can name their firm Smith & Jones, LLC.
- May not use trade names
Example 35: Smith and Jones may not practice under the firm name of “Super Lawyers, Inc.”
- No false claims of partnership: Unassociated lawyers may not use a name implying association when there is none
Example 36: Smith and Jones are both solo practitioners who share office space. They may not practice under the firm name of “Smith & Jones, LLC” because that implies an association.
Referrals
- Referrals are generally permissible under the Rules, with certain limitations.
1. NO Payment for Referrals
- May not give money or anything of value to another in exchange for referrals
Example 37: Attorney may not give money to Chiropractor or Lawyer in exchange for referrals.
2. NO Reciprocal Referral Agreements
- These are prohibited.
- Includes agreements between two lawyers and between a lawyer and a non-lawyer
Example 38: A family lawyer cannot agree to send cases to an IP lawyer if the IP lawyer agrees to refer cases to the family lawyer.
Solicitation - In Person Contact
- Solicitation refers to narrower, targeted communications directed at a small group identified as requiring a specific service (e.g., accident victims).
1.NO In-Person or Real-Time Electronic Contact
- Prohibited if lawyer is trying to solicit clients for pecuniary gain
- Exception: Lawyer has a family, close personal , or prior professional relationship with the potential client
Example 39: At her family reunion, Attorney may discuss with family members the kind of work she does for clients.
- “Prior professional relationship” means a prior atty client relationship.
- Exception: For pro bono representation, these restrictions do not apply.
Example 40: Attorney wants to represent clients for free in a public interest case. Attorney may engage in real-time communication and/or in-person conversations with potential clients.
- Even if allowed to solicit clients in person or via real-time communication, attorneys may not intimidate or harass anyone.
Example 41: Attorney may not pressure Victim to sign a retainer agreement while Victim is in his hospital bed, even if Attorney offers pro bono representation or there is a prior attorney-client relationship.
Solicitation - Less Confrontational Forms of Contact
- Written solicitation (mailings, email) are permitted because they are not in real-time.
- Fewer restrictions on this form of contact
Note 3: Any written solicitation must be marked with the words
“ADVERTISING MATERIAL .”
- Mailing: Must be on the envelope
- Email: Must be both at the beginning and the end of the message
Solicitation - Others
3. Post-Event Waiting Periods
- May not solicit clients immediately after the accident or event at issue (no ambulance chasing!)
- In OH, attorneys must wait 30 days before soliciting potential clients. o
- Airplane Accidents: federal laws apply; waiting period is 45 days
4. Defendants in Civil Actions
Must wait for the defendant to be served with complaint before solicitation
5. Characterization of Practice
In all communications, attorneys are restricted as to how they characterize their practice.
General Rule: Can say that he/she practices in a certain area of law (e.g., family law), but cannot claim to be a specialist in an area unless certified by the OH Supreme Court.
