The Law School Magazine  ·  Fall 2007 :

The New Ohio Rules of Professional Conduct; The Task of Interpretation

By - Fall 2007
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With the February 2007 implementation of the Ohio Rules of Professional Conduct comes the difficult task of interpreting this new set of rules. The key to doing so flows from the process of their creation. The rules are a conscious blending of the ABA’s Model Rules of Professional Conduct, the model adopted in modified form in the vast majority of states, and portions of the extant law of Ohio which the drafters intended to carry forward. In the former situation, recourse can be had to the interpretation of identical language in other states or by the ABA. In the later, former Ohio cases and opinions should be consulted.

Two recent ethics opinions from the Ohio Board of Commissioners on Grievances and Discipline – one on the duty of lawyers to report the misconduct of other lawyers, the other on targeted direct mail advertising – diverge from this paradigm.

REPORTING MISCONDUCT

Under Model Rule 8.3(c) reporting is not required Under Model Rule 8.3(c) reporting is not required if it would necessitate the disclosure of “information otherwise protected by Rule 1.6.  …” Model Rule 1.6, like its Ohio counterpart sets forth a broad standard that protects from disclosure “any information relating to the representation,” subject to certain exceptions.

In adopting its version of the reporting rule, Ohio Rule 8.3, Ohio did not adopt the Model Rule language, but instead retained language from the former Code that limited the reporting duty to one who possesses “unprivileged knowledge” of the reportable misconduct. That phrase, in turn, had been interpreted to exclude both confidences (information protected by the attorney-client privilege) and secrets (other information gained in the professional relationship that the client has asked to be kept confidential or the release of which would likely embarrass or otherwise harm the client). That interpretation was the common one for states employing the “unprivileged knowledge” language. The one major exception was Illinois, which in a highly controversial decision, In re Himmel, 533 N.E.2d 790, 794 (Ill. 1988), limited the exception to confidences alone. That is, disclosure was required unless knowledge of the violation to be reported flowed from information protected by the attorney-client privilege.

The Ohio Supreme Court’s intent in retaining the “unprivileged knowledge” language is murky at best. One could argue that “unprivileged knowledge” was meant to exclude all the information protected by Ohio Rule 1.6. After all, “unprivileged knowledge” under the Code was interpreted to exclude all the material then treated as confidential under the ethics rules. Ohio Rule 1.6 certainly expands the information now to be treated as confidential, but the policy of weighing client rights to confidentiality over the system’s need for reporting remains the same. Some support for this interpretation comes from Comment [15] to Ohio Rule 1.6 which cites the reporting rule as a rule that requires disclosure of information relating to the representation only  if such disclosure is otherwise allowed by Ohio Rule 1.6(b). Nevertheless, since the drafters consciously chose to diverge from the Model Rule language that expressly relates the reporting disclosure limit to Rule 1.6, this interpretation seems unlikely.

The better interpretation is that since the “unprivileged knowledge” language was taken from the former Code, the phrase was intended to retain the same meaning as it had been given previously. This is supported by the official comparison to the former Code accompanying Ohio Rule 8.3. It points out differences between the former provision and the current one, but makes no mention that the scope of “unprivileged knowledge” was meant to change. Under the Code, the language had been interpreted to exclude not only “confidences” (i.e. communications protected by attorney-client privilege) but the broader category of “secrets” as well. If a radical departure from past practice were intended, it seemingly would have warranted at least a mention.

Surprisingly, the Ohio Board of Commissioners on Grievances and Discipline, in Opinion 2007-01, chose yet another interpretation, excluding from “unprivileged knowledge”  only matters that fall within the evidentiary attorney-client privilege or are learned in a lawyer’s assistance program. In reaching this conclusion the Board rejected the first interpretation above, but did not even address the second. Nor did it acknowledge that its interpretation made Ohio an outlier, with Illinois, in severely limiting the scope of information to be protected from disclosure in the reporting context.

TARGETED DIRECT MAIL ADVERTISING

One common form of advertising by lawyers involves sending letters to prospective clients. While common, the practice is not unregulated. In addition to the general rules governing lawyers advertising, Ohio Rule 7.3(c) imposes some special restrictions when a written, recorded or electronic communication from a lawyer that solicits professional employment “from a prospective client whom the lawyer reasonably believes to be in need of legal services in a particular matter. …”

Several concerns underlie the need for some restrictions on targeted direct mail advertising. A targeted letter could imply greater familiarity with the case than the lawyer has, or that the recipient’s problem is more dire than in fact it is. An inaccurately targeted letter could tell a person they have a legal problem when they do not, or might, because it is misdirected, give erroneous legal advice under the circumstances.

In a recent opinion, 2007-05, the Ohio Board of Commissioners on Grievances and Discipline addressed to which communications the rule should apply. As the Board framed the question: “Is a lawyer’s or law firm’s advertising of legal services through a personalized letter addressed to a contact person of a prospective business client a direct mail solicitation subject to the requirements of [Ohio] Rule 7.3(c), or a general announcement not subject to the requirements of Rule 7.3(c)?”

In answering this question, the Board saw the basic distinction as one between direct mail and general announcements. The determining factor for the Board was whether the communication involved a letter personalized to the recipient. If it does, the restrictions on directed mail should apply. Underlying this determination was a belief that “[p]ersonalization implies a familiarity with the recipient and recipients matters,” a core concern behind the special restrictions on direct mail contacts.

In doing so, however, the Board expressly disregarded the language of the Rule, which only imposes the restrictions when the lawyer reasonably believes the recipient to be in need of legal services “in a particular matter.” While acknowledging that on the facts before it there was no indication that the lawyer knew of such a need “in a particular matter,” the Board concluded that a reasonable belief that the recipient might have a “general need” is sufficient to trigger the targeted mail advertising restrictions if the letter is personalized.

There are several problems with this analysis. First, and foremost, one should be hesitant to simply ignore the express language of the Rule. At the least, a compelling case for doing so should be made, and it was not.

At its core, it appears the Board asked the wrong question. The dichotomy in this situation is not between general announcements and personalized direct mail. Rather, it is between personalized direct mail that addresses a “particular matter” and that which addresses mere “general need.” The letter that says “you were in a traffic accident and I can help you” is very different from the letter that says “I know you are a business and therefore may need tax advice – I do tax work.” Personalization of the addressee simply isn’t the test the Rule articulates.

The Board’s Opinion is also flawed in its failure to look to the harmonization of Ohio’s standards with the prevailing model, or the historic Ohio practices carried forward, the touchstones for interpreting the new Rules.

The operative language, “particular matter,” also appears in Model Rule 7.3(c) and yet no reference is made to the cases and opinions interpreting that phrase by the ABA or other jurisdictions.

Even more troubling is the Board’s failure to acknowledge one of its previous opinions under the Code. In Opinion 92-20, the Board considered whether the special restrictions on direct mail should apply to a lawyer who wished to mail a personalized cover letter and accompanying newsletter to a wide group including local businesses. Interpreting the Code provision which placed restrictions on direct mail solicitations, the Board determined that the mere personalization of the letter did not trigger those restrictions. Instead the Board stressed the language of the rule which, by its terms, applied only to the solicitation of persons “who may be in need of specific legal service by reason of a circumstance, condition or occurrence,” known or which could be known to the lawyer. Nothing in the official comparison between the former Code provision and the current Rule suggests that the drafters intended to make a basic change from this approach.

CONCLUSION

As in any new codification of the law, and particularly here with its blending of the old and the new, problems of interpretation inevitably arise. In addressing this complex task one must keep in mind the touchstones of past Ohio practice, where that is carried forward, and outside interpretations of language commonly shared by Ohio and other jurisdictions or the ABA. Without that, lawyers are left at sea in attempting to interpret these new provisions.

Professor Greenbaum teaches civil procedure and professional responsibility at Moritz. Reach him at greenbaum.1@osu.edu or (614) 292-4160. For a more in-depth analysis of these and other issues involving the law of professional responsibility in Ohio, see Arthur F. Greenbaum and Jones Day, Ohio Law of Professional Responsibility, in AMERICAN LEGAL ETHICS LIBRARY (Cornell Legal Information Institute), www.law.cornell.edu/ethics/ohio.html (also available on LEXIS as Ohio Legal Ethics Law Under the New Rules) [revised annually].

 

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