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CODE OF PROFESSIONAL RESPONSIBILITY
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The Canons of this Code are statements of axiomatic norms, expressing
in general terms the standards of professional conduct expected of lawyers
in their relationships with the public,
with the legal system, and with the legal profession. They embody the general
concepts from which the Ethical Considerations and the Disciplinary Rules are
derived.
The Ethical Considerations are aspirational in character and represent
the objectives toward which every member of the profession should strive.
They constitute a body of principles
upon which the lawyer can rely for guidance in many specific situations.
The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in
character. The Disciplinary Rules state the minimum level of conduct below
which no lawyer can fall
without being subject to disciplinary action.
[Effective: July 15, 1974.] 1
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CANON 1
A Lawyer Should Assist in Maintaining the Integrity and Competence
of the Legal Profession
ETHICAL CONSIDERATIONS
EC 1-1 A basic tenet of the professional responsibility of lawyers is that
every person in our society should have ready access to the independent professional
services of a lawyer of integrity
and competence. Maintaining the integrity and improving the competence of the
bar to meet the highest standards is the ethical responsibility of every lawyer.
EC 1-2 The public should be protected from those who are not
qualified to be lawyers by reason of a deficiency in education or moral
standards or of other relevant factors but who nevertheless
seek to practice law. To assure the maintenance of high moral and educational
standards of the legal profession, lawyers should affirmatively assist courts
and other appropriate bodies in
promulgating, enforcing, and improving requirements for admission to the bar.
In like manner, the bar has a positive obligation to aid in the continued improvement
of all phases of pre-admission
and post-admission legal education.
EC 1-3 Before recommending an applicant for admission, a lawyer should
satisfy himself that the applicant is of good moral character. Although a lawyer
should not become a self-appointed
investigator or judge of applicants for admission, he should report to proper
officials all unfavorable information he possesses relating to the character
or other qualifications of an
applicant.
EC 1-4 The integrity of the profession can be maintained only if conduct
of lawyers in violation of the Disciplinary Rules is brought to the attention
of the proper officials. A lawyer should
reveal voluntarily to those officials all unprivileged knowledge of conduct
of lawyers which he believes clearly to be in violation of the Disciplinary
Rules. If in the course of an investigation by
a grievance or ethics committee of a bar association or by the office of disciplinary
counsel it is found that persons involved in the investigation may have violated
federal or state criminal
statutes, it is the duty of the investigatory agency to notify the appropriate
law enforcement or prosecutorial authority of such alleged criminal violation.
A lawyer should, upon request, serve
on and assist committees and boards having responsibility for the administration
of the Disciplinary Rules.
EC 1-5 A lawyer should maintain high standards of professional
conduct and should encourage fellow lawyers to do likewise. He should
be temperate and dignified, and he should refrain from
all illegal and morally reprehensible conduct. Because of his position in society,
even minor violations of law by a lawyer may tend to lessen public confidence
in the legal profession.
Obedience to law exemplifies respect for law. To lawyers especially, respect
for the law should be more than a platitude. 2
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EC 1-6 An applicant for admission to the bar or a lawyer
may be unqualified, temporarily or permanently, for other than
moral and educational reasons, such as mental or emotional
instability. Lawyers should be diligent in taking steps to
see that during
a period of disqualification such person is not granted a license or, if licensed,
is not permitted to practice. In
like manner, when the disqualification has terminated, members of the bar should
assist such person in being licensed, or, if licensed, in being restored to
his full right to practice.
[Effective: October 5, 1970; EC 1-4 amended effective June 11, 1979.]
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DISCIPLINARY RULES
DR 1-101. MAINTAINING INTEGRITY AND COMPETENCE OF THE LEGAL PROFESSION.
(A) A lawyer is subject to discipline if he has made a
materially false statement in, or if he has deliberately failed
to disclose a material fact requested in connection with, his
application
for admission to the bar.
(B) A lawyer shall not further the application for admission to the bar of
another person known by him to be unqualified in respect to character, education,
or other relevant
attribute.
[Effective: October 5, 1970.] 4
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DR 1-102. MISCONDUCT.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule or, as a judicial candidate as defined in Canon
7 of the Code of Judicial Conduct, the provisions of the Code of Judicial Conduct
applicable to judicial
candidates.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on the lawyer's fitness
to practice law.
(B) A lawyer shall not engage, in a professional capacity, in conduct
involving discrimination prohibited by law because of race, color, religion,
age, gender, sexual orientation,
national origin, marital status, or disability. This prohibition does not apply
to a lawyer's confidential communication to a client or preclude legitimate
advocacy where race, color, religion,
age, gender, sexual orientation, national origin, marital status, or disability
is relevant to the proceeding where the advocacy is made.
[Effective: October 5, 1970; amended effective July 1, 1994; July 1,
1995.] 5
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DR 1-103. DISCLOSURE OF INFORMATION TO AUTHORITIES.
(A) A lawyer possessing unprivileged knowledge of a violation
of DR 1-102 shall report such knowledge to a tribunal or other
authority empowered to investigate or act upon such
violation.
(B) A lawyer possessing unprivileged knowledge or evidence concerning another
lawyer or a judge shall reveal fully such knowledge or evidence upon proper
request of a tribunal
or other authority empowered to investigate or act upon the conduct of lawyers
or judges.
(C) Any knowledge obtained by a member of a committee or subcommittee of a
bar association, or by a member, employee, or agent of a non-profit corporation
established by a bar
association, designed to assist lawyers with substance-abuse problems shall
be privileged for all purposes under DR 1-103, provided the knowledge was obtained
while the member, employee, or
agent was performing duties as a member, employee, or agent of the committee,
subcommittee, or non-profit corporation.
[Effective: October 5, 1970; amended effective June 17, 1987; September
1, 1995.] 6
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CANON 2
A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make
Legal Counsel Available
ETHICAL CONSIDERATIONS
EC 2-1 The need of members of the public for legal services is met only
if they recognize their legal problems, appreciate the importance of seeking
assistance, and are able to obtain the services
of acceptable legal counsel. Hence, important functions of the legal profession
are to educate laymen to recognize their legal problems, to facilitate the
process of intelligent selection of
lawyers, and to assist in making legal services fully available.
Recognition of Legal Problems
EC 2-2 The legal profession should assist laymen to recognize legal problems
because such problems may not be self-revealing and often are not timely noticed.
Therefore, lawyers acting
under proper auspices should encourage and participate in educational and public
relations programs concerning our legal system with particular reference to
legal problems that frequently
arise. Such educational programs should be motivated by a desire to benefit
the public rather than to obtain publicity or employment for particular lawyers.
Examples of permissible activities
include preparation of institutional advertisements and professional articles
for lay publications and participation in seminars, lectures, and civic programs.
But a lawyer who participates in such
activities should shun personal publicity.
EC 2-3 Whether a lawyer acts properly in volunteering advice to a layman
to seek legal services depends upon the circumstances. The giving of advice
that one should take legal action could
well be in fulfillment of the duty of the legal profession to assist laymen
in recognizing legal problems. The advice is proper only if motivated by a
desire to protect one who does not
recognize that he may have legal problems or who is ignorant of his legal rights
or obligations. Hence, the advice is improper if motivated by a desire to obtain
personal benefit, secure personal
publicity, or cause litigation to be brought merely to harass or injure another.
EC 2-4 Since motivation is subjective and often difficult
to judge, the motives of a lawyer who volunteers advice likely
to produce legal controversy may well be suspect if he receives
professional employment or other benefits as a result. A lawyer
who volunteers
advice that one should obtain the services of a lawyer generally should not
himself accept employment,
compensation, or other benefit in connection with that matter. However, it
is not improper for a lawyer to volunteer such advice and render resulting
legal services to close friends, relatives,
former clients (in regard to matters germane to former employment), and regular
clients. 7
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EC 2-5 A lawyer who writes or speaks for the purpose
of educating members of the public to recognize their legal
problems should carefully refrain from giving or appearing
to give a general
solution applicable to all apparently similar individual problems, since slight
changes in fact situations may require a material variance in the applicable
advice; otherwise, the public may be
misled and misadvised. Talks and writings by lawyers for laymen should caution
them not to attempt to solve individual problems upon the basis of the information
contained therein.
Selection of a Lawyer: Generally
EC 2-6 Formerly a potential client usually knew the reputations of local
lawyers for competency and integrity and therefore could select a practitioner
in whom he had confidence. This traditional
selection process worked well because it was initiated by the client and the
choice was an informed one.
EC 2-7 Changed conditions, however, have seriously restricted
the effectiveness of the traditional selection process. Often the reputations
of lawyers are not sufficiently known to
enable laymen to make intelligent choices. The law has become increasingly
complex and specialized. Few lawyers are willing and competent to deal with
every kind of legal matter, and
many laymen have difficulty in determining the competence of lawyers to render
different types of legal services. The selection of legal counsel is particularly
difficult for transients, persons moving
into new areas, persons of limited education or means, and others who have
little or no contact with lawyers.
EC 2-8 Selection of a lawyer by a layman often is the result of the advice and recommendation of third parties--relatives, friends, acquaintances, business associates, or other lawyers. A layman is best served if the recommendation is disinterested and informed. In order that the recommendation be disinterested, a lawyer should not seek to influence another to recommend his employment. A lawyer should not compensate another person for recommending him, for influencing a prospective client to employ him, or to encourage future recommendations.
Selection of a Lawyer: Professional Notices and Listings
EC 2-9 Methods of advertising that are false, misleading or deceptive should
be and are prohibited. However, the Disciplinary Rules recognize the value
of giving assistance in the
selection process through forms of advertising.
EC 2-10 The name under which a lawyer conducts his practice
may be a factor in the selection process. The use of a trade name or
an assumed
name
could mislead laymen concerning the
identity, responsibility, and status of those practicing thereunder. Accordingly,
a lawyer in private practice should practice only under his own name, the
name of a lawyer employing him, a
partnership name composed of the name of one or more of the lawyers practicing
in a partnership, or, if permitted by law, in the name of a professional
legal corporation, which should be clearly
designated as such. For many years some law firms have used a firm name retaining
one or more names of deceased or retired partners and such practice is not
improper if the firm is a bona fide
successor of a firm in which the deceased or retired person was a member,
if the use of the name 8
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is authorized by law or by contract, and if the public is
not misled thereby. However, the name of a partner who withdraws
from a firm but continues to practice
law should be omitted from the
firm name in order to avoid misleading the public.
EC 2-11 A lawyer occupying a judicial, legislative, or public
executive or administrative position who has the right to practice law
concurrently
may allow his name to remain in the name of the
firm if he actively continues to practice law as a member thereof. Otherwise,
his name should be removed from the firm name, and he should not be identified
as a past or present member of the
firm; and he should not hold himself out as being a practicing lawyer.
EC 2-12 In order to avoid the possibility of misleading
persons with whom he deals, a lawyer should be scrupulous
in the representation of his professional status. He should
not
hold himself
out as being a partner or associate of a law firm if he
is not one in fact, and thus should not hold himself out
as
a partner or associate if he only shares
offices with another lawyer.
EC 2-13 In some instances, a lawyer confines his or her practice to a particular field of law. Except as provided in the Rules for the Government of the Bar of Ohio, a lawyer should not be permitted to hold himself or herself out as a specialist or as having special training or ability, other than in the historically excepted fields of admiralty, trademark, and patent law.
EC 2-14 The legal profession has developed lawyer referral systems
designed to aid individuals who are able to pay fees but need assistance
in locating lawyers competent to handle their
particular problems. Use of a lawyer referral system enables a layman to avoid
an uninformed selection of a lawyer because such a system makes possible the
employment of competent lawyers
who have indicated an interest in the subject matter involved. Lawyers should
support the principle of lawyer referral systems and should encourage the evolution
of other ethical plans
which aid in the selection of qualified counsel.
Financial Ability to Employ Counsel: Generally
EC 2-15 The legal profession cannot remain a viable force in fulfilling
its role in our society unless its members receive adequate compensation for
services rendered, and reasonable fees
should be charged in appropriate cases to clients able to pay them. Nevertheless,
persons unable to pay all or a portion of a reasonable fee should be able to
obtain necessary legal services, and
lawyers should support and participate in ethical activities designed to achieve
that objective.
Financial Ability to Employ Counsel: Persons Able to Pay
Reasonable Fees
EC 2-16 The determination of a proper fee requires consideration of the
interests of both client and lawyer. A lawyer should not charge more than a
reasonable fee, for excessive cost of legal
service would deter laymen from utilizing the legal system in protection of
their rights. Furthermore, an excessive charge abuses the professional relationship
between lawyer and client.
On the other hand, adequate compensation is necessary in order to enable
the lawyer to serve his client effectively and to preserve the integrity
and independence
of the profession. 9
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EC 2-17 The determination of the reasonableness of
a fee requires consideration of all relevant circumstances,
including
those stated in the Disciplinary Rules. The fees of a lawyer
will vary
according to many factors, including the time required, his
experience, ability, and reputation, the nature of the employment,
the responsibility involved,
and the results obtained. Suggested fee
schedules and economic reports of state and local bar associations provide
some guidance on the subject of reasonable fees. It is a commendable and
longstanding tradition of the bar that special
consideration is given in the fixing of any fee for services rendered a brother
lawyer or a member of his immediate family.
EC 2-18 As soon as feasible after a lawyer has been employed,
it is desirable that he reach a clear agreement with his client as to
the basis of the fee charges to be made. Such a course will not
only prevent later misunderstanding but will also work for good relations between
the lawyer and the client. It is usually beneficial to reduce to writing the
understanding of the parties regarding
the fee, particularly when it is contingent. A lawyer should be mindful that
many persons who desire to employ him may have had little or no experience
with fee charges of lawyers, and for this
reason he should explain fully to such persons the reasons for the particular
fee arrangement he proposes.
EC 2-19 Contingent fee arrangements in civil cases have long been commonly accepted in the United States in proceedings to enforce claims. The historical bases of their acceptance are that (1) they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a competent lawyer to prosecute his claim, and (2) a successful prosecution of the claim produces a res out of which the fee can be paid. Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client who, after being fully informed of all relevant factors, desires that arrangement. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations cases are rarely justified. In administrative agency proceedings contingent fee contracts should be governed by the same considerations as in other civil cases. Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a res with which to pay the fee.
EC 2-20 A lawyer should not accept compensation or any thing of
value incident to his employment or services from one other than his
client without
the knowledge and consent of his
client after full disclosure.
EC 2-21 Without the prior consent of his or her client, a lawyer
should not associate in a particular matter another lawyer outside his
or her firm.
A fee may properly be divided between
lawyers properly associated if: (1) the division is in proportion to the services
performed or, if agreed to in writing by the client, all of the lawyers assume
responsibility for representing the
client; (2) the terms of the fee division and the identity of all lawyers sharing
in the fee are disclosed in writing to the client prior to obtaining the client's
consent; and (3) the total fee is
reasonable. 10
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EC 2-22 A lawyer should be zealous in his efforts to avoid controversies
over fees with clients and should attempt to resolve amicably any differences
on the subject. He should not sue a client
for a fee unless necessary to prevent fraud or gross imposition by the client.
Financial Ability to Employ Counsel: Persons Unable to Pay
Reasonable Fees
EC 2-23 A layman whose financial ability is not sufficient to permit payment
of any fee cannot obtain legal services, other than in cases where a contingent
fee is appropriate, unless the services
are provided for him. Even a person of moderate means may be unable to pay
a reasonable fee which is large because of the complexity, novelty, or difficulty
of the problem or similar factors.
EC 2-24 Historically, the need for legal services of those unable
to pay reasonable fees has been met in part by lawyers who donated their
services or accepted court appointments on behalf of
such individuals. The basic responsibility for providing legal services for
those unable to pay ultimately rests upon the individual lawyer, and personal
involvement in the problems of the
disadvantaged can be one of the most rewarding experiences in the life of a
lawyer. Every lawyer, regardless of professional prominence or professional
workload, should find time to participate in
serving the disadvantaged. The rendition of free legal services to those unable
to pay reasonable fees continues to be an obligation of each lawyer, but the
efforts of individual lawyers are often
not enough to meet the need. Thus it has been necessary for the profession
to institute additional programs to provide legal services. Accordingly, legal
aid offices, lawyer referral services, and
other related programs have been developed, and others will be developed, by
the profession. Every lawyer should support all proper efforts to meet this
need for legal services.
Acceptance and Retention of Employment
EC 2-25 A lawyer is under no obligation to act as adviser or advocate for
every person who may wish to become his client; but in furtherance of the objective
of the bar to make legal services
fully available, a lawyer should not lightly decline proffered employment.
The fulfillment of this objective requires acceptance by a lawyer of his share
of tendered employment which may be
unattractive both to him and the bar generally.
EC 2-26 History is replete with instances of distinguished and
sacrificial services by lawyers who have represented unpopular clients
and causes. Regardless
of his personal feelings, a lawyer
should not decline representation because a client or a cause is unpopular
or community reaction is adverse.
EC 2-27 The personal preference of a lawyer to avoid adversary alignment against judges, other lawyers, public officials, or influential members of the community does not justify his rejection of tendered employment.
EC 2-28 When a lawyer is appointed by a court or requested by
a bar association to undertake representation of a person unable to obtain
counsel,
whether for financial or other reasons, he
should not seek to be excused from undertaking the representation except for
compelling reasons. 11
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Compelling reasons do not include such factors as the repugnance
of the subject matter of the proceeding, the identity or position
of a person involved in
the case, the belief of the lawyer that
the defendant in a criminal proceeding is guilty, or the belief of the lawyer
regarding the merits of the civil case.
EC 2-29 Employment should not be accepted by a lawyer when he
is unable to render competent service or when he knows or it is obvious
that the person seeking to employ him desires to
institute or maintain an action merely for the purpose of harassing or maliciously
injuring another. Likewise, a lawyer should decline employment if the intensity
of his personal feeling, as
distinguished from a community attitude, may impair his effective representation
of a prospective client. If a lawyer knows a client has previously obtained
counsel, he should not accept
employment in the matter unless the other counsel approves or withdraws, or
the client terminates the prior employment.
EC 2-30 Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent his client by advising whether to take an appeal and, if the appeal is prosecuted, by representing him through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court.
EC 2-31 A decision by a lawyer to withdraw should be made only
on the basis of compelling circumstances, and in a matter pending before
a tribunal
he must comply with the rules of the
tribunal regarding withdrawal. A lawyer should not withdraw without considering
carefully and endeavoring to minimize the possible adverse effect on the
rights of his client and the possibility of
prejudice to his client as a result of his withdrawal. Even when he justifiably
withdraws, a lawyer should protect the welfare of his client by giving due
notice of his withdrawal, suggesting
employment of other counsel, delivering to the client all papers and property
to which the client is entitled, cooperating with counsel subsequently employed,
and otherwise endeavoring to minimize
the possibility of harm. Further, he should refund to the client any compensation
not earned during the employment.
EC 2-32 As a party of the legal profession's commitment to the
principle that high quality legal services should be available to all,
attorneys are encouraged to cooperate with qualified legal
assistance organizations providing prepaid legal services. Such participation
should at all times be in accordance with the basic tenets of the profession:
independence, integrity, competence and
devotion to the interests of individual clients. An attorney so participating
should make certain that his relationship with a qualified legal assistance
organization in no way interferes with his
independent, professional representation of the interests of the individual
client. An attorney should avoid situations in which officials of the organization
who are not lawyers attempt to direct
attorneys concerning the manner in which legal services are performed for individual
members, and should also avoid situations in which considerations of economy
are given undue weight in
determining the attorneys employed by an organization or the legal services
to be performed for the member or beneficiary rather than competence and quality
of service. An attorney interested
in maintaining the historic traditions of the profession and preserving the
function of a lawyer as a trusted and independent advisor to individual members
of society should carefully assess such 12
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factors when accepting employment by, or otherwise participating in, a particular
qualified legal assistance organization, and while so participating should
adhere to the highest professional
standards of effort and competence.
[Effective: October 5, 1970; EC 2-33 adopted effective October 20, 1975;
EC 2-3 and 2-9 amended effective March 1, 1986; EC 2-10 repealed and
EC 2-11 to
EC 2-33 renumbered
effective March 1, 1986; EC 2-13 amended effective January 1, 1993.] 13
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DR 2-101. PUBLICITY.
(A) A lawyer shall not, on his or her
own behalf or that of a partner, associate,
or other lawyer affiliated with the
lawyer or the lawyer's firm, use, or participate in the use
of, any form of
public communication, including direct mail solicitation, that:
(1) Contains any false, fraudulent, misleading, deceptive,
self-laudatory, or unfair statement;
(2) Seeks employment in connection with matters in which the lawyer
or law firm does not intend to actively participate in the representation,
but that the lawyer or law firm intends to
refer to other counsel, except that this provision shall not apply to organizations
defined in DR 2-103( D)( 1);
(3) Contains any testimonial of past or present clients pertaining to
the lawyer's capability;
(4) Contains any claim that is not verifiable;
(5) Contains characterizations of rates or fees chargeable by the lawyer or
law firm, such as "cut-rate," "lowest," "giveaway," "below
cost," "discount," and "special;" however, use of
characterizations of rates or fees such as "reasonable" and "moderate" is
acceptable.
(B) Subject to the limitations contained in these rules:
(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.
(2) A lawyer or law firm may permit or purchase inclusion of information in
a telephone or city directory, subject to the following standards:
(a) The lawyer's or the firm's name, address, and telephone number may
be listed alphabetically in the residential, business, or classified
sections.
(b) Listing or display advertising in the classified section shall be limited
to one or more of the following:
(i) under the general heading "Lawyers" or "Attorneys;"
(ii) if a lawyer or a firm meets the requirements of DR 2-105( A)( 1), under
the classification or heading identifying the field or area of practice in
which the lawyer or firm is so
qualified; 14
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(iii) under a classification or heading that identifies the lawyer or firm
by geographic location, certification as a specialist pursuant to DR 2-105(
A)( 4) or (5), or field of law as
provided by DR 2-105( A)( 6).
(c) Nothing contained in this rule shall prohibit a lawyer or law firm from
permitting inclusion in reputable law lists and law directories intended primarily
for the use of the legal
profession, of such information as has traditionally appeared in those publications.
(3) Brochures or pamphlets containing biographical and informational data that
is acceptable under these rules may be disseminated directly to clients, members
of the bar, or
others.
(C) A communication is false or misleading if it satisfies any of the following:
(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;
(3) Is subjectively self-laudatory, or compares a lawyer's services with other
lawyers' services, unless the comparison can be factually substantiated.
(D) The following information with regard to lawyers, law firms, or
members of firms will be presumed to be informational rather than solely
promotional or self-laudatory, and
acceptable for dissemination under these rules, if accurate and presented in
a dignified manner:
(1) Name or names of lawyer, law firm, and professional associates, together
with their addresses and telephone numbers, with designations such as "Lawyer," "Attorney," "Law
Firm";
(2) Field or fields of practice, limitations of practice, or areas of concentration,
but only to the extent permitted by DR 2-105;
(3) Date and place of birth;
(4) Dates and places of admission to the bar of the state and federal courts;
(5) Schools attended, with dates of graduation and degrees conferred;
(6) Legal teaching positions held at accredited law schools;
(7) Authored publications;
(8) Memberships in bar associations and other professional organizations;
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(9) Technical and professional licenses;
(10) Military service;
(11) Foreign language abilities;
(12) Subject to DR 2-103, prepaid or group legal service programs in which
the lawyer or firm participates;
(13) Whether credit cards or other credit arrangements are accepted;
(14) Office and telephone answering services hours.
(E)( 1) Any of the following information with regard to fees and charges, if
presented in a dignified manner, is acceptable for communication to the public
in the manner stipulated by DR 2-
101( B):
(a) Fee for an initial consultation;
(b) Availability upon request of either a written schedule of fees or of an
estimate of the fee to be charged for specific services;
(c) Contingent fee rates, subject to DR 2-106( C), provided that the
statement discloses whether percentages are computed before or after
deduction of costs and expenses and
advises the public that, in the event of an adverse verdict or decision, the
contingent fee litigant could be liable for payment of court costs, expenses
of investigation, expenses of medical
examinations, and costs incurred in obtaining and presenting evidence;
(d) Fixed fee or range of fees for specific legal services or hourly fee rates,
provided the statement discloses that;
(i) Stated fixed fees or range of fees will be available only to clients
whose matters are included among the specified services;
(ii) If the client's matter is not included among the specified services or
if no hourly fee rate is stated, the client will be entitled, without obligation,
to a specific written estimate of the fee
likely to be charged.
(2)( a) If a lawyer or a law firm quotes a fee for a service in an advertisement
or direct mail solicitation, the service must be rendered for no more than
the fee advertised or quoted.
(b) Unless otherwise specified in the advertisement, if a lawyer or
a law firm includes any fee information in a publication that is published
more frequently than one time per month, the
lawyer or law firm shall be bound by any representation made in the advertisement
for a period of 16
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not less than thirty days after such publication. If a lawyer or law firm publishes
any fee information in a publication that is published once a month or less
frequently, the lawyer or law
firm shall be bound by any representation made in the advertisement until the
publication of the succeeding issue. If a lawyer or law firm advertises any
fee information in a publication that has
no fixed date for publication of a succeeding issue, the lawyer or law firm
shall be bound by any representation made in the advertisement for a reasonable
period of time after publication, but in
no event less than one year.
(c) Unless otherwise specified, if a lawyer or law firm broadcasts any fee
information by radio or television, the lawyer or law firm shall be bound by
any representation made in the
broadcast for a period of not less than thirty days after the date of the broadcast.
(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.
(2) A lawyer or law firm may engage in written solicitation by direct
mail addressed to persons or groups of persons who may be in need of
specific legal service by reason of a
circumstance, condition, or occurrence that is known or, upon reasonable inquiry,
could be known to the soliciting lawyer or law firm, provided the letter of
solicitation:
(a) Discloses accurately and fully the manner in which the lawyer or
law firm became aware of and verified the identity and specific legal
need of the addressee;
(b) Disclaims any prior acquaintance or contact with the addressee and avoids
any personalization in approach unless the facts are otherwise;
(c) Disclaims or refrains from expressing any predetermined evaluation of the
merits of the addressee's case;
(d) Conforms to standards required by these rules with respect to information
acceptable for inclusion in media advertising by lawyers and law firms;
(e) Includes in its text and on the envelope in which mailed, in red ink and
in type no smaller than 10 point, the recital --" ADVERTISEMENT ONLY."
(3) The provisions of division (F)( 2) of this rule shall not apply to organizations
defined in DR 2-103( D)( 1).
(G) A lawyer shall not directly or indirectly compensate or give any thing
of value to representatives of the press, radio, television, or other communication
medium in anticipation of
or in return for professional publicity in a news item.
[Effective: October 5, 1970; amended effective October 20, 1975; November 28,
1977; February 12, 1979; June 11, 1979; March 1, 1986; January 1, 1993; August
16, 1993.] 17
17 Page 18 19
DR 2-102. PROFESSIONAL NOTICES, LETTERHEADS, AND OFFICES.
(A) A lawyer or law firm may use or participate in the
use of professional cards, professional announcement cards,
office signs, letterheads, or similar professional notices
or
devices, that are in dignified form and comply with the following:
(1) A professional card of a lawyer identifying the lawyer by name and as a
lawyer and giving the lawyer's addresses, telephone numbers, law firm name,
and any information permitted
under DR 2-105. A professional card of a law firm may also give the names of
members and associates and may be used for identification.
(2) A brief professional announcement card stating new or changed associations
or addresses, change of firm name, or similar matters pertaining to ~e
professional offices of a
lawyer or law firm. It shall not state the nature of the practice except as
permitted under DR 2-105.
(3) A sign on or near the door of the office and in the building directory
identifying the law office. The sign shall not state the nature of the
practice, except as permitted under DR 2-
105.
(4) A letterhead of a lawyer identifying the lawyer by name and as a
lawyer, and giving the lawyer's addresses, telephone numbers, law firm
name, associates,
and any information
permitted under DR 2-105. A letterhead of a law firm may also give the names
of members and associates, and names and dates relating to deceased and retired
members. A lawyer may be
designated "Of Counsel" on a letterhead if the lawyer has a continuing
relationship with a lawyer or law firm, other than as a partner or associate.
A lawyer or law firm may be designated as
"General Counsel" or by similar professional reference on stationery
of a client if the lawyer or the firm devotes a substantial amount of professional
time in the representation of that client. The
letterhead of a law firm may give the names and dates of predecessor firms
in a continuing line of succession.
(B) A lawyer in private practice shall not practice under a trade name,
a name that is misleading as to the identity of the lawyer or lawyers
practicing under the name, or a firm name
containing names other than those of one or more of the lawyers in the firm,
except that the name of a professional corporation or association, legal clinic,
limited liability company, or registered
partnership shall contain symbols indicating the nature of the organization
as required by Gov. Bar R. III. If otherwise lawful, a firm may use as, or
continue to include in, its name the name or
names of one or more deceased or retired members of the firm or of a predecessor
firm in a continuing line of succession. A lawyer who assumes a judicial, legislative,
public executive, or
administrative post or office shall not permit his or her name to remain in
the name of a law firm or to be used in professional notices of the firm during
any significant period in which the lawyer
is not actively and regularly practicing law as a member of the firm, and during
this period other members of the firm shall not use the lawyer's name in the
firm name or in professional notices of
the firm. 18
18 Page 19 20
(C) A lawyer shall not hold himself or herself out as having a partnership
with one or more other lawyers or professional corporations unless they are
in fact partners.
(D) A partnership shall not be formed or continued between or among
lawyers licensed in different jurisdictions unless all enumerations
of the members
and associates of the firm on its
letterhead and in other permissible listings make clear the jurisdictional
limitations on those members and associates of the firm not licensed to
practice in all listed jurisdictions; however, the
same firm name may be used in each jurisdiction.
(E) A lawyer who is engaged both in the practice of law and another
profession or business shall not so indicate on the lawyer's letterhead,
office sign,
or professional card, nor shall
the lawyer identify himself or herself as a lawyer in any publication
in connection with his or her other profession or business.
(F) Nothing contained in this rule shall prohibit a lawyer from using or permitting the use, in connection with the lawyer's name, of an earned degree or title derived from an earned degree indicating the lawyer's training in the law.
(G) A legal clinic operated by one or more lawyers may be organized by
the lawyer or lawyers for the purpose of providing standardized and
multiple legal
services. The name of the
law office shall consist only of the names of one or more of the active practitioners
in the organization, and may include the phrase "legal clinic" or
words of similar import. The use of a
trade name or geographical or other type of identification or description is
prohibited. The name of any active practitioner in the clinic may be retained
in the name of the legal clinic after the
lawyer's death, retirement or inactivity because of age or disability, and
the name must otherwise conform to other provisions of the Code of Professional
Responsibility and The Supreme Court
Rules for the Government of the Bar of Ohio. The legal clinic cannot be owned
by, and profits or losses cannot be shared with, nonlawyers or lawyers who
are not actively engaged in the practice
of law in the organization.
[Effective: October 5, 1970; amended effective November 28, 1977; March
13, 1978; June 11, 1979; January 4, 1982; March 1, 1986; December 1,
1995.] 19
19 Page 20 21
DR 2-103. RECOMMENDATION OF PROFESSIONAL EMPLOYMENT.
(A) A lawyer shall
not recommend employment,
as a private practitioner, of himself or
herself, his or her partner, or
associate to a non-lawyer who has not sought the lawyer's advice
regarding employment of
a lawyer, except as provided
in DR
2-101.
(B) A lawyer shall not compensate or give any thing of value
to a person or organization to recommend or secure the lawyer's
employment by a client, or
as a reward for having made a recommendation resulting in the lawyer's employment
by a client, except that the lawyer may pay the usual and reasonable fees
or dues charged by any of the organizations listed in
DR 2-103( D).
(C) A lawyer shall not request a person or organization to recommend or promote
the use of the lawyer's services or those of the lawyer's partner or associate,
or any other lawyer
affiliated with the lawyer or the lawyer's firm, as a private practitioner,
except that:
(1) The lawyer may request referrals from a lawyer referral service that refers
the lawyer to prospective clients but only if the lawyer referral service conforms
to all of the
following:
(a) Operates in the public interest for the purpose of referring prospective
clients to lawyers, pro bono and public service programs, and government, consumer,
or other agencies
who can provide the assistance the clients need in light of their financial
circumstance, spoken language, any disability, geographical convenience, and
the nature and complexity of their
problem;
(b) Calls itself a lawyer referral service or a lawyer referral and information
service;
(c) Is open to all lawyers who are licensed and admitted to the practice of
law in Ohio who maintain an office in the geographical area to be served by
the service and who meet
reasonable, objectively determined experience requirements established by the
service; pay the reasonable registration and membership fees established by
the service; and maintain in force a
policy of errors and omissions insurance or provide proof of financial responsibility
in an amount established by the service;
(d) Establishes rules that prohibit lawyer members of the service from
charging prospective clients to whom a client is referred, fees and or
costs that exceed charges the client
would have incurred had no lawyer referral service been involved;
(e) Establishes procedures to survey periodically clients referred to determine
client satisfaction with its operations and to investigate and take appropriate
action with respect to
client complaints against lawyer members of the service, and the service and
its employees; 20
20 Page 21 22
(f) Establishes procedures for admitting, suspending, or removing lawyers from
its roll of panelists and promulgates rules that prohibit the making of a fee
generating referral to any
lawyer who has an ownership interest in, or who operates or is employed by
the lawyer referral service, or who is associated with a law firm that has
an ownership interest in, or operates or is
employed by the lawyer referral service;
(g) Establishes subject-matter panels, eligibility for which shall be determined
on the basis of experience and other substantial objectively determinable criteria;
(h) The lawyer referral service does not, as a condition of participation
in the referral service, limit the lawyer's selection of co-counsel to
other lawyers listed with the referral service;
(i) Reports regularly to the Supreme Court Committee for Lawyer Referral and
Information Services and satisfies the record-keeping and rules requirements
of the Committee.
The Committee shall adopt regulations for the operation of lawyer referral
services satisfying the requirements established in divisions (C)( 1)( a) to
(i) of this rule.
(2) A lawyer participating in a lawyer referral service that meets the
requirements of divisions (C)( 1)( a) to (i) of this rule may:
(a) Be required, in addition to payment of a membership or registration fee
as provided in divisions (C)( 1)( c) of this rule, to pay a fee calculated
as a percentage of legal fees
earned by any lawyer panelist to whom the lawyer referral service has referred
a matter. The income from the percentage fee shall be used only to pay the
reasonable operating expenses of the
service and to fund public service activities of the service or its sponsoring
organization, including the delivery of pro bono public services;
(b) As a condition of participation in the service, be required to submit
any fee disputes with a referred client to mandatory fee arbitration;
(c) Participate in moderate and no-fee panels and other special panels established
by the service that respond to the referral needs of the consumer public, eligibility
for which shall be
determined on the basis of experience and other substantial objectively determinable
criteria.
(3) The lawyer may cooperate with the legal service activities of any of the
offices or organizations enumerated in divisions (D)( 1) to (4) of this rule
and may perform legal services for
those to whom the lawyer was recommended by it to do such work if both of the
following apply:
(a) The person to whom the recommendation is made is a member or beneficiary
of such office or organization;
(b) The lawyer remains free to exercise independent professional judgment
on behalf of the lawyer's client. 21
21 Page 22 23
(D) A lawyer shall not knowingly assist a person or organization that furnishes
or pays for legal services to others to promote the use of the lawyer's services
or those of the lawyer's
partner or associate or any other lawyer affiliated with the lawyer or the
lawyer's firm except as permitted in DR 2-101( B). However, this does not prohibit
a lawyer or the lawyer's partner or
associate or any other lawyer affiliated with the lawyer or the lawyer's firm
from being recommended, employed, or paid by, or cooperating with, assisting,
and providing legal services
for, one of the following offices or organizations that promote the use of
the lawyer's services or those of the lawyer's partner or associate or any
other lawyer affiliated with the lawyer or the
lawyer's firm if there is no interference with the exercise of independent
professional judgment on behalf of the lawyer's client:
(1) A legal aid office or public defender office:
(a) Operated or sponsored by a duly accredited law school.
(b) Operated or sponsored by a bona fide non-profit community organization.
(c) Operated or sponsored by a governmental agency.
(d) Operated, sponsored, or approved by a bar association.
(2) A military legal assistance office.
(3) A lawyer referral service that complies with division (C) of this
rule.
(4) Any bona fide organization that recommends, furnishes, or pays for legal
services to its members or beneficiaries provided all of the following conditions
are satisfied:
(a) The organization, including any affiliate, is organized and operated
so that no profit is derived by it from the rendition of legal services
by lawyers, and that, if the organization is
organized for profit, the legal services are not rendered by lawyers employed,
directed, supervised, or selected by it except in connection with matters where
the organization bears
ultimate liability of its member or beneficiary.
(b) Neither the lawyer, the lawyer's partner, associate, or any other lawyer
affiliated with the lawyer or the lawyer's firm, nor any non-lawyer, shall
have initiated or promoted the
organization for the primary purpose of providing financial or other benefit
to the lawyer, partner, associate, or affiliated lawyer.
(c) The organization is not operated for the purpose of procuring legal
work or financial benefit for any lawyer as a private practitioner outside
of the legal services program of the
organization.
(d) The member or beneficiary to whom the legal services are furnished, and
not the organization, is recognized as the client of the lawyer in the matter.
22
22 Page 23 24
(e) Any member or beneficiary who is entitled to have legal services furnished
or paid for by the organization, if such member or beneficiary so desires,
may select counsel other than that
furnished, selected or approved by the organization; provided, however, that
the organization shall be under no obligation to pay for the legal services
furnished by the attorney selected by the
beneficiary unless the terms of the legal services plan specifically provide
for payment.
Every legal services plan shall provide that any member or beneficiary may
assert a claim that representation by counsel furnished, selected, or approved
by the organization would be
unethical, improper, or inadequate under the circumstances of the matter involved.
The plan shall provide for adjudication of a claim under division (D)( 4)(
c) of this rule and appropriate relief
through substitution of counsel or providing that the beneficiary may select
counsel and the organization shall pay for the legal services rendered by selected
counsel to the extent that such
services are covered under the plan and in an amount equal to the cost that
would have been incurred by the plan if the plan had furnished designated counsel.
(f) The lawyer does not know or have cause to know that the organization
is in violation of applicable laws, rules of court, and other legal requirements
that govern its legal service
operations.
(g) The organization has filed with the Supreme Court of Ohio, on or before
the first day of January of each year, a report with respect to its legal service
plan, if any, showing its terms, its
schedule of benefits, its subscription charges, agreements with counsel, and
financial results of its legal service activities or, if it has failed to do
so, the lawyer does not know or have cause to
know of the failure.
(E) Nothing in this rule 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.
[Effective: October 5, 1970; amended effective January 1, 1973; October
29, 1975; March 1, 1986, July 1, 1996.] 23
23 Page 24 25
DR 2-104. SUGGESTION OF NEED OF LEGAL SERVICES.
(A) A lawyer who has given unsolicited advice to a nonlawyer
that the nonlawyer should obtain counsel or take legal action
shall not accept employment resulting from that advice,
except that:
(1) A lawyer may accept employment by a close friend, relative, former client,
if the advice is germane to the former employment, or one whom the lawyer reasonably
believes to be a
client.
(2) A lawyer may accept employment that results from the lawyer's participation
in activities designed to educate nonlawyers to recognize legal problems, to
make intelligent
selection of counsel, or to utilize available legal services if the activities
are conducted or sponsored by any of the offices or organizations enumerated
in DR 2103( D)( 1) through (4), to
the extent and under the conditions prescribed in these rules.
(3) A lawyer who is recommended, furnished or paid by a qualified legal assistance
organization enumerated in DR 2-103( D)( 1) through (4) may represent a member
or beneficiary
of the organization, to the extent and under the conditions prescribed in these
rules.
(4) Without affecting the lawyer's right to accept employment, a lawyer may
speak publicly or write for publication on legal topics so long as the lawyer
does not emphasize the
lawyer's own professional experience or reputation and does not undertake to
give individual advice.
(5) If success in asserting rights or defenses of the lawyer's 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 purpose of obtaining their joinder.
(B) Nothing in this rule 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.
[Effective: October 5, 1970; amended effective October 20, 1975; March 1, 1986;
December 1, 1995.] 24
24 Page 25 26
DR 2-105. LIMITATION OF PRACTICE.
(A) A lawyer shall not hold himself or herself out publicly
as a specialist or as limiting his or her practice, except
as follows:
(1) A lawyer admitted to practice before the United States Patent Office may use the designation "Patents," "Patent Attorney," or "Patent Lawyer," or any combination of those terms, on his letterhead and office sign. A lawyer engaged in the trademark practice may use the designation "Trademarks," "Trademark Attorney," or "Trademark Lawyer," or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the designation "Admiralty," "Proctor in Admiralty," or "Admiralty Lawyer," or any combination of those terms, on his letterhead and office sign.
(2) A lawyer may permit his name to be listed in lawyer referral service
offices according to the fields of law in which he will accept referrals.
(3) A lawyer available to act as a consultant to or as an associate
of other lawyers in a particular branch of law or legal service may distribute
to other lawyers and publish in legal
journals a dignified announcement of such availability, but the announcement
shall not contain a representation of special competence or experience.
(4) A lawyer who is certified as a specialist in a particular field of law pursuant to the Supreme Court Rules for the Government of the Bar of Ohio may hold himself or herself out as a specialist only in accordance with those rules.
(5) A lawyer who has received certification from a private organization
of special training, competence, or experience in a particular field
of law may
communicate the fact of the
certification only if the certifying organization is bona fide, certification
is issued only to lawyers who meet objective and consistently applied standards
relevant to practice in that field of law that
are higher than those required for admission to the practice of law, and certification
is available to all lawyers who meet the standards. Any communication regarding
certification shall comply with
DR 2-101 and, unless the certifying organization is so approved, shall contain
a statement that the certifying organization is not approved by the Supreme
Court Commission on Certification of
Attorneys as Specialists.
(6) A lawyer may state that his or her practice consists in large part or is
limited to a field or fields of law. Except as provided in DR 2-105( A)( 1),
(4), and (5), a lawyer may not claim
or imply special competence or experience in a field of law through use of
the term "specialize" or otherwise.
[Effective: October 5, 1970; amended effective March 1, 1986; January
1, 1993.] 25
25 Page 26 27
DR 2-106. FEES FOR LEGAL SERVICES.
(A) A lawyer shall not enter into an agreement for, charge,
or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a
lawyer of ordinary prudence would be left with a definite and firm conviction
that the fee is in excess of a reasonable
fee. Factors to be considered as guides in determining the reasonableness of
a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing
the services.
(8) Whether the fee is fixed or contingent.
(C) A lawyer shall not enter into an arrangement for, charge, or collect a
contingent fee for representing a defendant in a criminal case.
[Effective: October 5, 1970.] 26
26 Page 27 28
DR 2-107. DIVISION OF FEES AMONG LAWYERS.
(A) Division of fees by lawyers who are not in the same
firm may be made only with the prior consent of the client
and if all of the following apply:
(1) The division is in proportion to the services performed by each
lawyer or, if by written agreement with the client, all lawyers assume
responsibility for the representation;
(2) The terms of the division and the identity of all lawyers sharing in the
fee are disclosed in writing to the client;
(3) The total fee is reasonable.
(B) In cases of dispute between lawyers arising under this rule, fees shall
be divided in accordance with mediation or arbitration provided by a local
bar association. Disputes that
cannot be resolved by a local bar association shall be referred to the Ohio
State Bar Association for mediation or arbitration.
(C) This rule does not prohibit payment to a former partner or associate
pursuant to a separation or retirement agreement.
[Effective: October 5, 1970; amended effective August 1, 1990.] 27
27 Page 28 29
DR 2-108. AGREEMENTS RESTRICTING THE PRACTICE OF A LAWYER.
(A) A lawyer shall not be a party to or participate in
a partnership or employment agreement with another lawyer that
restricts the right of a lawyer to practice law after the
termination of a relationship created by the agreement, except as a condition
to payment of retirement benefits.
(B) In connection with the settlement of a controversy or suit, a lawyer
shall not enter into an agreement that restricts his right to practice
law.
[Effective: October 5, 1970.] 28
28 Page 29 30
DR 2-109. ACCEPTANCE OF EMPLOYMENT.
(A) A lawyer shall not accept employment on behalf of a person if he knows
or it is obvious that such person wishes to:
(1) Bring a legal action, conduct a defense, or assert a position in
litigation, or otherwise have steps taken for him, merely for the purpose
of harassing or maliciously injuring
any person.
(2) Present a claim or defense in litigation that is not warranted under existing
law, unless it can be supported by good faith argument for an extension, modification,
or reversal of
existing law.
[Effective: October 5, 1970.] 29
29 Page 30 31
DR 2-110. WITHDRAWAL FROM EMPLOYMENT.
(A) In General.
(1) If permission for withdrawal from employment is required by the rules
of a tribunal, a lawyer shall not withdraw from employment in a proceeding
before that tribunal
without its permission.
(2) In any event, a lawyer shall not withdraw from employment until
he has taken reasonable steps to avoid foreseeable prejudice to the
rights of his
client, including giving due
notice to his client, allowing time for employment of other counsel, delivering
to the client all papers and property to which the client is entitled, and
complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any
part of a fee paid in advance that has not been earned.
(B) Mandatory Withdrawal. A lawyer representing a client
before a tribunal, with its permission if required by its rules,
shall withdraw from employment, and a lawyer representing
a client in other matters shall withdraw from employment if:
(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.
(2) He knows or it is obvious that his continued employment will result
in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult
for him to carry out the employment effectively.
(4) He is discharged by his client.
(C) Permissive Withdrawal. If DR 2-110( B) is not applicable,
a lawyer may not request permission to withdraw in matters pending before
a tribunal,
and may not withdraw in
other matters, unless such request or such withdrawal is because:
(1) His client:
(a) Insists upon presenting a claim or defense that is not warranted under
existing law and cannot be supported by good faith argument for an extension,
modification, or reversal of
existing law.
(b) Personally seeks to pursue an illegal course of conduct. 30
30 Page 31 32
(c) Insists that the lawyer pursue a course of conduct that is illegal or that
is prohibited under the Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the lawyer to carry
out his employment effectively.
(e) Insists, in a matter not pending before a tribunal, that the lawyer engage
in conduct that is contrary to the judgment and advice of the lawyer but not
prohibited under the Disciplinary
Rules.
(f) Deliberately disregards an agreement or obligation to the lawyer as to
expenses or fees.
(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
(3) His inability to work with co-counsel indicates that the best interests
of the client likely will be served by withdrawal.
(4) His mental or physical condition renders it difficult for him to carry out the employment effectively.
(5) His client knowingly and freely assents to termination of his employment.
(6) He believes in good faith, in a proceeding pending before a tribunal,
that the tribunal will find the existence of other good cause for
withdrawal.
[Effective: October 5, 1970.] 31
31 Page 32 33
CANON 3
A Lawyer Should Assist in Preventing the Unauthorized Practice of Law
ETHICAL CONSIDERATIONS
EC 3-1 The prohibition against the practice of law by a layman is grounded
in the need of the public for integrity and competence of those who undertake
to render legal services. Because of
the fiduciary and personal character of the lawyer-client relationship and
the inherently complex nature of our legal system, the public can better be
assured of the requisite responsibility and
competence if the practice of law is confined to those who are subject to the
requirements and regulations imposed upon members of the legal profession.
EC 3-2 The sensitive variations in the considerations that bear
on legal determinations often make it difficult even for a lawyer to
exercise appropriate professional judgment, and it is
therefore essential that the personal nature of the relationship of client
and lawyer be preserved. Competent professional judgment is the product of
a trained familiarity with law and legal
processes, a disciplined, analytical approach to legal problems, and a firm
ethical commitment.
EC 3-3 A non-lawyer who undertakes to handle legal matters
is not governed as to integrity or legal competence by the
same rules that govern the conduct of a lawyer. A lawyer is
not only
subject to that regulation but also is committed to high standards of ethical
conduct. The public interest is best served in legal matters by a regulated
professional committed to such standards.
The Disciplinary Rules protect the public in that they prohibit a lawyer from seeking employment by improper overtures, from acting in cases of divided loyalties, and from submitting to the control of others in the exercise of his judgment. Moreover, a person who entrusts legal matters to a lawyer is protected by the attorney-client privilege and by the duty of the lawyer to hold inviolate the confidences and secrets of his client.
EC 3-4 A layman who seeks legal services often is not in a position
to judge whether he will receive proper professional attention. The entrustment
of a legal matter may well involve the
confidences, the reputation, the property, the freedom, or even the life
of the client. Proper protection of members of the public demands that no
person
be permitted to act in the confidential
and demanding capacity of a lawyer unless he is subject to the regulations
of the legal profession.
EC 3-5 It is neither necessary nor desirable to attempt
the formulation of a single, specific definition of what
constitutes the practice of law. Functionally, the practice
of law relates
to the
rendition of services for others that call for the professional
judgment of a lawyer. The essence of the professional judgment
of the lawyer is his educated
ability to relate the general body and
philosophy of law to a specific legal problem of a client; and thus, the
public interest will be better served if only lawyers are permitted to act
in matters
involving professional judgment.
32 Page 33 34
Where this professional judgment is not involved, non-lawyers,
such as court clerks, police officers, abstracters, and
many governmental employees, may
engage in occupations that require a
special knowledge of law in certain areas. But the services of a lawyer
are essential in the public interest whenever the exercise of professional
legal
judgmet is required.
EC 3-6 A lawyer often delegates tasks to clerks, secretaries,
and other lay persons. Such delegation is proper if the lawyer maintains
a direct relationship with his client, supervises the
delegated work, and has complete professional responsibility for the work product.
This delegation enables a lawyer to render legal service more economically
and efficiently.
EC 3-7 The prohibition against a non-lawyer practicing law does not prevent a layman from representing himself, for then he is ordinarily exposing only himself to possible injury. The purpose of the legal profession is to make educated legal representation available to the public; but anyone who does not wish to avail himself of such representation is not required to do so. Even so, the legal profession should help members of the public to recognize legal problems and to understand why it may be unwise for them to act for themselves in matters having legal consequences.
EC 3-8 Since a lawyer should not aid or encourage a layman to
practice law, he should not practice law in association with a layman
or otherwise share
legal fees with a layman. This does
not mean, however, that the pecuniary value of the interest of a deceased
lawyer in his firm or practice may not be paid to his estate or specified
persons
such as his widow or heirs. In like
manner, profit-sharing retirement plans of a lawyer or law firm which include
nonlawyer office employees are not improper. These limited exceptions to
the rule against sharing legal fees with
laymen are permissible since they do not aid or encourage laymen to practice
law.
EC 3-9 Regulation of the practice of law is accomplished
principally by the respective states. Authority to engage
in the practice of law conferred in any jurisdiction is
not per
se a grant of the
right to practice elsewhere, and it is improper for a lawyer
to engage in practice where he is not permitted by law
or by court order to do so. However, the demands
of business and the mobility
of our society pose distinct problems in the regulation of the practice
of law by the states. In furtherance of the public interest, the legal
profession
should discourage regulation that
unreasonably imposes territorial limitations upon the right of a lawyer
to handle the legal affairs of his client or upon the opportunity of a
client
to obtain the services of a lawyer of his choice in all
matters including the presentation of a contested matter in a tribunal
before which the lawyer is not permanently admitted to practice.
[Effective: October 5, 1970.] 33
33 Page 34 35
DISCIPLINARY RULES
DR 3-101. AIDING UNAUTHORIZED PRACTICE OF LAW.
(A) A lawyer shall not aid a non-lawyer in the unauthorized
practice of law.
(B) A lawyer shall not practice law in a jurisdiction where to do so would
be in violation of regulations of the profession in that jurisdiction.
[Effective: October 5, 1970.] 34
34 Page 35 36
DR 3-102. DIVIDING LEGAL FEES WITH A NON-LAWYER.
(A) A lawyer or law firm shall not share legal fees with
a non-lawyer, except that:
(1) An agreement by a lawyer with his firm, partner, or associate may provide
for the payment of money, over a reasonable period of time after his death,
to his estate or to one or
more specified persons.
(2) A lawyer who undertakes to complete unfinished legal business of a deceased
lawyer may pay to the estate of the deceased lawyer that proportion of the
total compensation
which fairly represents the services rendered by the deceased lawyer.
(3) A lawyer or law firm may include non-lawyer employees in a retirement plan,
even though the plan is based in whole or in part on a profit-sharing arrangement.
(4) A lawyer participating in a lawyer referral service that satisfies
the requirements of DR 2-103( C) may pay to the service a fee calculated
as a percentage of legal fees earned by the
lawyer in his or her capacity as a lawyer to whom the service has referred
a matter. This percentage fee is in addition to any reasonable membership or
registration fee established by the
service.
[Effective: October 5, 1970; amended effective: July 1, 1996.] 35
35 Page 36 37
DR 3-103. FORMING A PARTNERSHIP WITH A NON-LAWYER.
(A) A lawyer shall not form a partnership with a non-lawyer
if any of the activities of the partnership consist of the
practice of law.
[Effective: October 5, 1970.] 36
36 Page 37 38
CANON 4
A Lawyer Should Preserve the Confidences and Secrets of a Client
ETHICAL CONSIDERATIONS
EC 4-1 Both the fiduciary relationship existing between lawyer and client
and the proper functioning of the legal system require the preservation by
the lawyer of confidences and secrets
of one who has employed or sought to employ him. A client must feel free to
discuss whatever he wishes with his lawyer and a lawyer must be equally free
to obtain information beyond that
volunteered by his client. A lawyer should be fully informed of all the facts
of the matter he is handling in order for his client to obtain the full advantage
of our legal system. It is for the lawyer
in the exercise of his independent professional judgment to separate the relevant
and important from the irrelevant and unimportant. The observance of the ethical
obligation of a lawyer to hold
inviolate the confidences and secrets of his client not only facilitates the
full development of facts essential to proper representation of the client
but also encourages laymen to seek early legal
assistance.
EC 4-2 The obligation to protect confidences and secrets obviously
does not preclude a lawyer from revealing information when his client
consents after
full disclosure, when necessary to
perform his professional employment, when permitted by a Disciplinary Rule,
or when required by law. Unless the client otherwise directs, a lawyer may
disclose the affairs of his client to partners
or associates of his firm. It is a matter of common knowledge that the normal
operation of a law office exposes confidential professional information to
nonlawyer employees of the office,
particularly secretaries and those having access to the files; and this obligates
a lawyer to exercise care in selecting and training his employees so that the
sanctity of all confidences and secrets of
his clients may be presented. If the obligation extends to two or more clients
as to the same information, a lawyer should obtain the permission of all before
revealing the information. A
lawyer must always be sensitive to the rights and wishes of his client and
act scrupulously in the making of decisions which may involve the disclosure
of information obtained in his professional
relationship. Thus, in the absence of consent of his client after full disclosure,
a lawyer should not associate another lawyer in the handling of a matter; nor
should he, in the absence of consent,
seek counsel from another lawyer if there is a reasonable possibility that
the identity of the client or his confidences or secrets would be revealed
to such lawyer. Both social amenities and
professional duty should cause a lawyer to shun indiscreet conversations concerning
his clients.
EC 4-3 Unless the client otherwise directs, it is not
improper for a lawyer to give limited information from his
files to an outside agency necessary for statistical, bookkeeping,
accounting,
data processing, banking, printing, or other legitimate purposes,
provided he exercises due care in the selection of the agency
and warns the agency that
the information must be kept confidential.
37 Page 38 39
EC 4-4 The attorney-client privilege is more limited
than the ethical obligation of a lawyer to guard the confidences
and secrets of his client. This ethical precept, unlike the
evidentiary
privilege, exists without regard to the nature or source
of information or the fact that others share the knowledge.
A
lawyer should endeavor to act in
a manner which preserves the evidentiary
privilege; for example, he should avoid professional discussions in the presence
of persons to whom the privilege does not extend. A lawyer owes an obligation
to advise the client of the
attorney-client privilege and timely to assert the privilege unless it is
waived by the client.
EC 4-5 A lawyer should not use information acquired
in the course of the representation of a client to the
disadvantage of the client and a lawyer should not use, except with the
consent of his
client after full disclosure, such information for his
own purposes. Likewise, a lawyer should be diligent in
his efforts
to prevent the misuse of such information
by his employees and associates.
Care should be exercised by a lawyer to prevent the disclosure of the confidences
and secrets of one client to another, and no employment should be accepted
that might require such disclosure.
EC 4-6 The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment. Thus a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. A lawyer should also provide for the protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.
[Effective: October 5, 1970.] 38
38 Page 39 40
DISCIPLINARY RULES
DR 4-101. PRESERVATION OF CONFIDENCES AND SECRETS OF A CLIENT.
(A) "Confidence" refers to information protected by the attorney-client
privilege under applicable law, and "secret" refers to other information
gained in the professional relationship that
the client has requested be held inviolate or the disclosure of which would
be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-101( C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or
of a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected,
but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
(D) A lawyer shall exercise reasonable care to prevent his employees,
associates, and others whose services are utilized by him from
disclosing or using confidences
or secrets of a
client, except that a lawyer may reveal the information allowed by
DR 4-101( C) through an employee.
[Effective: October 5, 1970.] 39
39 Page 40 41
CANON 5
A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client
ETHICAL CONSIDERATIONS
EC 5-1 The professional judgment of a lawyer should be exercised, within
the bounds of the law, solely for the benefit of his client and free of compromising
influences and loyalties. Neither
his personal interests, the interests of other clients, nor the desires of
third persons should be permitted to dilute his loyalty to his client.
Interests of a Lawyer That May Affect His Judgment
EC 5-2 A lawyer should not accept proffered employment if his personal
interests or desires will, or there is a reasonable probability that they will,
affect adversely the advice to be given or
services to be rendered the prospective client. After accepting employment,
a lawyer carefully should refrain from acquiring a property right or assuming
a position that would tend to make his
judgment less protective of the interests of his client.
EC 5-3 The self-interest of a lawyer resulting from his ownership
of property in which his client also has an interest or which may affect
property
of his client may interfere with the exercise of
free judgment on behalf of his client. If such interference would occur with
respect to a prospective client, a lawyer should decline employment proffered
by him. After accepting
employment, a lawyer should not acquire property rights that would adversely
affect his professional judgment in the representation of his client. Even
if the property interests of a lawyer
do not presently interfere with the exercise of his independent judgment,
but the likelihood of interference can reasonably be foreseen by him, a lawyer
should explain the situation to his client
and should decline employment or withdraw unless the client consents to the
continuance of the relationship after full disclosure. A lawyer should not
seek to persuade his client to permit him to
invest in an undertaking of his client nor make improper use of his professional
relationship to influence his client to invest in an enterprise in which
the lawyer is interested.
EC 5-4 If, in the course of his representation of a client, a
lawyer is permitted to receive from his client a beneficial ownership
in publication rights relating to the subject matter of the employment,
he may be tempted to subordinate the interests of his client to his own
anticipated
pecuniary gain. For example, a lawyer in a criminal case who obtains from his
client television, radio, motion
picture, newspaper, magazine, book, or other publication rights with respect
to the case may be influenced, consciously or unconsciously, to a course of
conduct that will enhance the value of his
publication rights to the prejudice of his client. To prevent these potentially
differing interests, such arrangements should be scrupulously avoided prior
to the termination of all aspects of the
matter giving rise to the employment, even though his employment has previously
ended. 40
40 Page 41 42
EC 5-5 A lawyer should not suggest to the lawyer's client
that a gift be made to the lawyer or for the lawyer's benefit.
If a lawyer accepts a gift from the lawyer's client, the lawyer
is peculiarly
susceptible to the charge that the lawyer unduly influenced or overreached
the client. If a client voluntarily offers to make a gift to the client's lawyer,
the lawyer may accept the gift, but before
doing so, the lawyer should urge that the client secure disinterested advice
from an independent, competent person who is cognizant of all the circumstances.
Unless the client is related by blood
or marriage, a lawyer should insist that an instrument in which the lawyer's
client desires to name the lawyer beneficially be prepared by another lawyer
selected by the client.
EC 5-6 A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety.
EC 5-7 The possibility of an adverse effect
upon the exercise of free judgment by a lawyer on behalf of his client
during litigation generally makes itundesirable for the lawyer
to acquire a
proprietary interest in the cause of his client or otherwise
to become financially interested in the outcome of the litigation.
However, it is not improper for
a lawyer to protect his right to collect a
fee for his services by the assertion of legally permissible liens, even
though by doing so he may acquire an interest in the outcome of litigation.
Although
a contingent fee arrangement gives a
lawyer a financial interest in the outcome of litigation, a reasonable contingent
fee is permissible in civil cases because it may be the only means by which
a layman can obtain the services of a lawyer
of his choice. But a lawyer, because he is in a better position to evaluate
a cause of action, should enter into a contingent fee arrangement only in
those instances where the arrangement will be
beneficial to the client.
EC 5-8 A financial interest in the outcome of litigation also
results if monetary advances are made by the lawyer to his client.
Although this
assistance generally is not encouraged, there are
instances when it is not improper to make loans to a client. For example,
the advancing or guaranteeing of payment of the costs and expenses of litigation
by a lawyer may be the only way a
client can enforce his cause of action, but the ultimate liability for
such costs and expenses must be that of the client.
EC 5-9 Occasionally a lawyer is called upon to decide in a particular
case whether he will be a witness or an advocate. If a lawyer is both
counsel and witness, he becomes more easily
impeachable for interest and thus may be a less effective witness. Conversely,
the opposing counsel may be handicapped in challenging the credibility of the
lawyer when the lawyer also
appears as an advocate in the case. An advocate who becomes a witness is in
the unseemly and ineffective position of arguing his own credibility. The roles
of an advocate and of a witness are
inconsistent; the function of an advocate is to advance or argue the cause
of another, while that of a witness is to state facts objectively.
EC 5-10 Problems incident to the lawyer-witness relationship
arise at different stages; they relate either to whether a lawyer should
accept employment or should withdraw from employment.
Regardless of when the problem arises, his decision is to be governed by the
same basic 41
41 Page 42 43
considerations. It is not objectionable for a lawyer who is a potential witness
to be an advocate if it is unlikely that he will be called as a witness because
his testimony would be merely cumulative
or if his testimony will relate only to an uncontested issue. In the exceptional
situation where it will be manifestly unfair to the client for the lawyer to
refuse employment or to withdraw when he
will likely be a witness on a contested issue, he may serve as advocate even
though he may be a witness. In making such decision, he should determine the
personal or financial sacrifice of the
client that may result from his refusal of employment or withdrawal therefrom,
the materiality of his testimony, and the effectiveness of his representation
in view of his personal involvement. In weighing these factors, it should be
clear that refusal or withdrawal will impose an unreasonable hardship upon
the client before the lawyer accepts or
continues the employment. Where the
question arises, doubts should be resolved in favor of the lawyer testifying
and against his becoming or continuing as an advocate.
EC 5-11 A lawyer should not permit his personal interests to influence his advice relative to a suggestion by his client that additional counsel be employed. In like manner, his personal interests should not deter him from suggesting that additional counsel be employed; on the contrary, he should be alert to the desirability of recommending additional counsel when, in his judgment, the proper representation of his client requires it. However, a lawyer should advise his client not to employ additional counsel suggested by the client if the lawyer believes that such employment would be a disservice to the client, and he should disclose the reasons for his belief.
EC 5-12 Inability of co-counsel to agree on a matter vital to the representation of their client requires that their disagreement be submitted by them jointly to their client for his resolution, and the decision of the client shall control the action to be taken.
EC 5-13 A lawyer should not maintain membership in
or be influenced by any organization of employees that
undertakes to prescribe, direct, or suggest
when or how he should fulfill his
professional obligations to a person or organization that employs him as
a lawyer. Although it is not necessarily improper for a lawyer employed
by a
corporation or similar entity to be a member
of an organization of employees, he should be vigilant to safeguard his
fidelity as a lawyer to his employer free from outside influences.
Interests of Multiple Clients
EC 5-14 Maintaining the independence of professional judgment required
of a lawyer precludes his acceptance or continuation of employment that will
adversely affect his judgment on behalf of
or dilute his loyalty to a client. This problem arises whenever a lawyer is
asked to represent two or more clients who may have differing interests, whether
such interests be conflicting,
inconsistent, diverse, or otherwise discordant.
EC 5-15 If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would
42 42 Page 43 44
be justified in representing in litigation multiple clients
with potentially differing interests. If a lawyer accepted
such employment and the interests
did become actually differing, he would have
to withdraw from employment with likelihood of resulting hardship on the
clients; and for this reason it is preferable that he refuse the employment
initially.
On the other hand, there are many
instances in which a lawyer may properly serve multiple clients having potentially
differing interests in matters not involving litigation. If the interests
vary only slightly, it is generally likely
that the lawyer will not be subjected to an adverse influence and that he
can retain his independent judgment on behalf of each client; and if the
interests
become differing, withdrawal is less likely
to have a disruptive effect upon the causes of his clients.
EC 5-16 In those instances in which a lawyer is justified
in representing two or more clients having differing interests, it is
nevertheless essential
that each client be given the opportunity to
evaluate his need for representation free of any potential conflict and
to obtain other counsel if he so desires. Thus before a lawyer may represent
multiple clients, he should explain fully to each
client the implications of the common representation and should accept
or continue employment only if the clients consent. If there are present
other
circumstances
that might cause any of the
multiple clients to question the undivided loyalty of the lawyer, he should
also advise all of the clients of those circumstances.
EC 5-17 Typically recurring situations involving potentially differing interests are those in which a lawyer is asked to represent co-defendants in a criminal case, co-plaintiffs in a personal injury case, an insured and his insurer, and beneficiaries of the estate of a decedent. Whether a lawyer can fairly and adequately protect the interests of multiple clients in these and similar situations depends upon an analysis of each case. In certain circumstances, there may exist little chance of the judgment of the lawyer being adversely affected by the slight possibility that the interests will become actually differing; in other circumstances, the chance of adverse effect upon his judgment is not unlikely.
EC 5-18 A lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity. In advising the entity, a lawyer should keep paramount its interests and his professional judgment should not be influenced by the personal desires of any person or organization. Occasionally, a lawyer for an entity is requested by a stockholder, director, officer, employee, representative, or other person connected with the entity to represent him in an individual capacity; in such case the lawyer may serve the individual only if the lawyer is convinced that differing interests are not present.
EC 5-19 A lawyer may represent several clients whose interests
are not actually or potentially differing. Nevertheless, he should explain
any circumstances that might cause a client to question
his undivided loyalty. Regardless of the belief of a lawyer that he may properly
represent multiple clients, he must defer to a client who holds the contrary
belief and withdraw from representation
of that client.
EC 5-20 A lawyer is often asked to serve as an impartial arbitrator
or mediator in matters which involve present or former clients. He may serve
in either capacity if he first discloses such present 43
43 Page 44 45
or former relationships. After a lawyer has undertaken to act as an impartial
arbitrator or mediator, he should not thereafter represent in the dispute any
of the parties involved.
Desires of Third Persons
EC 5-21 The obligation of a lawyer to exercise professional judgment
solely on behalf of his client requires that he disregard the desires of
others that
might impair his free judgment. The
desires of a third person will seldom adversely affect a lawyer unless that
person is in a position to exert strong economic, political, or social pressures
upon the lawyer. These influences are often
subtle, and a lawyer must be alert to their existence. A lawyer subjected
to outside pressures should make full disclosure of them to his client; and
if
he or his client believes that the
effectiveness of his representation has been or will be impaired thereby,
the lawyer should take proper steps to withdraw from representation of his
client.
EC 5-22 Economic, political, or social pressures by third persons are less likely to impinge upon the independent judgment of a lawyer in a matter in which he is compensated directly by his client and his professional work is exclusively with his client. On the other hand, if a lawyer is compensated from a source other than his client, he may feel a sense of responsibility to someone other than his client.
EC 5-23 A person or organization that pays or furnishes lawyers
to represent others possesses a potential power to exert strong pressures
against the independent
judgment of those lawyers.
Some employers may be interested in furthering their own economic, political,
or social goals without regard to the professional responsibility of the
lawyer to his individual client. Others may
be far more concerned with establishment or extension of legal principles
than in the immediate protection of the rights of the lawyer's individual
client.
On some occasions, decisions on priority
of work may be made by the employer rather than the lawyer with the result
that prosecution of work already undertaken for clients is postponed to their
detriment. Similarly, an employer may
seek, consciously or unconsciously, to further its own economic interests
through the actions of the lawyers employed by it. Since a lawyer must always
be free
to exercise his professional
judgment without regard to the interests or motives of a third person, the
lawyer who is employed by one to represent another must constantly guard
against erosion of his professional freedom.
EC 5-24 To assist a lawyer in preserving his professional independence,
a number of courses are available to him. For example, a lawyer should
not practice with or in the form of a professional
legal corporation, even though the corporate form is permitted by law, if any
director, officer, or stockholder of it is a non-lawyer. Although a lawyer
may be employed by a business corporation
with non-lawyers serving as directors or officers, and they necessarily have
the right to make decisions of business policy, a lawyer must decline to accept
direction of his professional
judgment from any layman. Various types of legal aid offices are administered
by boards of directors composed of lawyers and laymen. A lawyer should not
accept employment from such
an organization unless the board sets only broad policies and there is no interference
in the relationship of the lawyer and the individual client he serves. Where
a lawyer is employed by an
organization, a written agreement that defines the relationship between him
and the organization and provides for his independence is desirable since it
may serve to prevent misunderstanding as 44
44 Page 45 46
to their respective roles. Although other innovations in the means of supplying
legal counsel may develop, the responsibility of the lawyer to maintain his
professional independence remains
constant, and the legal profession must insure that changing circumstances
do not result in loss of the professional independence of the lawyer.
[Effective: October 5, 1970; amended May 1, 1996.] 45
45 Page 46 47
DISCIPLINARY RULES
DR 5-101. REFUSING EMPLOYMENT WHEN THE INTERESTS OF THE LAWYER MAY IMPAIR THE
LAWYER'S INDEPENDENT PROFESSIONAL JUDGMENT.
(A)( 1) Except with the consent of the client after full
disclosure, a lawyer shall not accept employment if the exercise
of professional judgment on behalf of the client will be or
reasonably
may be affected by the lawyer's financial, business, property, or personal
interests.
(2) Notwithstanding the consent of the client, a lawyer shall not knowingly
prepare, draft, or supervise the preparation or execution of a will, codicil,
or inter vivos trust for a client in
which any of the following are named as beneficiary:
(a) the lawyer;
(b) the lawyer's law partner or a shareholder of the lawyer's firm;
(c) an associate, paralegal, law clerk, or other employee in the lawyer's
firm or office;
(d) a lawyer acting "of counsel" in the lawyer's firm;
(e) the spouses, siblings, natural or adoptive children, or natural or adoptive
parents of any of those described in divisions (A)( 2)( a) through (d) of
this rule.
(3) Division (A)( 2) of this rule shall not apply if the client is related
by blood or marriage to the beneficiary within the third degree of relationship
as defined by the law of Ohio.
(B) A lawyer shall not accept employment in contemplated or pending litigation
if the lawyer knows or it is obvious that the lawyer or a lawyer in the firm
ought to be called as a
witness, except that the lawyer may undertake the employment and the lawyer
or a lawyer in the firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there
is no reason to believe that substantial evidence will be offered in opposition
to the testimony.
(3) If the testimony will relate solely to the nature
and value of legal services rendered in the case by the lawyer or the firm
to the client.
(4) As to any matter, if refusal would work a substantial hardship on the
client because of the distinctive value of the lawyer or the firm as counsel
in the
particular case.
[Effective: October 5, 1970; amended May 1, 1996.] 46
46 Page 47 48
DR 5-102. WITHDRAWAL AS COUNSEL WHEN THE LAWYER BECOMES A WITNESS.
(A) If, after undertaking employment in contemplated or pending litigation,
a lawyer learns or it is obvious that he or a lawyer in his firm ought to
be called as a witness on behalf of
his client, he shall withdraw from the conduct of the trial and his firm,
if any, shall not continue representation in the trial, except that he may
continue
the representation and he or a lawyer in his
firm may testify in the circumstances enumerated in DR 5-101( B)( 1) through
(4).
(B) If, after undertaking employment in contemplated or pending litigation,
a lawyer learns or it is obvious that he or a lawyer in his firm may be called
as a witness other than on
behalf of his client, he may continue the representation until it is apparent
that his testimony is or may be prejudicial to his client.
[Effective: October 5, 1970.] 47
47 Page 48 49
DR 5-103. AVOIDING ACQUISITION OF INTEREST IN LITIGATION.
(A) A lawyer shall not acquire a proprietary interest in
the cause of action or subject matter of litigation he is conducting
for a client, except that he may:
(1) Acquire a lien granted by law to secure his fee or expenses.
(2) Contract with a client for a reasonable contingent fee in a civil case.
(B) While representing a client in connection with contemplated or pending