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NEW OPINIONS FROM BOARD OF PROFESSIONAL CONDUCT

Article: June 23, 2017  |  ArticlesMalpractice Alerts

The Board of Professional Conduct issued five new opinions in 2017 to date. (See MalpracticeAlert! Jan-Mar 2017 for discussion of Opinion 2017-1 and Opinion 2017-2).

Opinion 2017-3 Solicitation of ProfessionalEmployment Via Email, issued April 7, 2017, updates and withdraws former Opinion 2004-1. Opinion 2017-3 notes that because email solicitation is treated similarly to other forms of written communication permitted by Rules 7.1-7.3    of the Ohio Rules of Professional Conduct, the content of the email soliciting professional employment must not be false, misleading, or nonverifiable.

Pursuant to Rule 7.3(b), solicitation in any form is not permitted if:

*  the person being solicited has made it known they do not desire to be contacted;

*  the solicitation involves coercion, duress, or harassment, or the lawyer knows or reasonably should know the person is a minor, incompetent, or cannot exercise reasonable judgment in employing a lawyer.

Rule 7.3 requires that every written, recorded or electronic communication from a lawyer soliciting professional employment comply with three conditions:

*  disclose accurately and fully the manner in which the lawyer became aware of the identity and specific legal need of the addressee;

*  refrain from expressing any predetermined evaluation of the merits of the addressee’s case;

*  conspicuously include the recital “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” at the beginning and ending of any electronic communication.

The opinion notes that including “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” in the subject line of the email satisfies the requirement to include that recital at the beginning of the communication.

The opinion states that restrictions about the inclusion of the “Understanding Your Rights” must be observed and that the statement must be included in the body of the email solicitation and not referenced by an attachment or hyperlink.

Opinion 2017-3 also indicated that a lawyer may permit a lawyer referral service or lawyer advertising service to transmit a solicitation email on the lawyer’s behalf.  Under Rule 5.3, the lawyer using such a service is responsible for ensuring the service’s compliance with the Rules of Professional Conduct and should review the content of the email to be sure it conforms to the Rules.

Opinion 2017-4 Legal Representation of a Clientby Former Magistrate states that under the Ohio Ethics Law, Ohio Revised Code 102.03(A)(1), a former magistrate is prohibited for 12 months after leaving the bench from representing a client in a matter in which he or she personally participated in as a government employee.

The opinion discusses Rule 1.12:  Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral, of the Ohio Rules of Professional Conduct, which provides:

(a) Except as stated in division (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (Emphasis added.)

The opinion further notes that, paragraph (c) of Rule 1.12 requires:

(c)    If a lawyer is disqualified by division (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless both of the following apply:

(1)   the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;

(2)   written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.

Opinion 2017-3 and 2017-4 were also brought to you in the OBLICAlert, May 9, 2017.

On June 22, 2017, Court News Ohio gave notification of the most recent opinion, Opinion2017-5 Virtual Law Office. This opinion states that an Ohio lawyer may provide legal services via a virtual law office, VLO, through the use of available technology, noting that a VLO permits lawyers to work remotely, offers clients and lawyers the ability to discuss matters electronically without meeting in person, affords clients the opportunity to review their client file online, and reduces or eliminates the overhead typically associated with traditional offices.

Citing Rule 1.1 of the Ohio Rules of Professional Conduct, the opinion says that because of the nature of a VLO, the lawyer needs to keep abreast of the benefits and risks associated with relevant technology and possess a general knowledge of the security safeguards for the technology used in the lawyer’s practice.

Further, the lawyer must take steps to ensure that all electronic communications are adequately understood by the client so the client is able to make informed decisions regarding the representation, per Rule 1.4.

When using cloud computing, email, or other technology that relies on third-party storage or transmission of data, the lawyer must take “reasonable efforts” to prevent inadvertent or unauthorized disclosure of unauthorized access to information related to the representation of the client, as required by Rule 1.6. The opinion also discussed Rule 5.3 duties related to third- party technology vendors.

Importantly, the opinion indicated that a lawyer may use a shared office arrangement as part of a VLO if:

*  the lawyer meets the “Office address” requirement of Rule 7.2(c) by providing an office address in all communications that corresponds to the lawyer’s home or physical office, the address of the shared office space, or a registered post office box;

*  avoids making a false, misleading, or nonverifiable communication under Rule 7.1

*  may comply with rules 7.1 and 7.2, by stating the lawyer is able to meet in person with clients “by appointment only” or that the lawyer operates a virtual office and can arrange to meet with clients through available technology or in person at the client’s request;

*  ensures that client confidentiality is maintained at all times and that all information related to representation is protected from inadvertent disclosure to third parties, per Rule 1.6 (c).

  • PRACTICE POINTER: These new opinions point out the continuing involvement of technology in the practice of law and the need for lawyers to be aware of the risks and benefits of technology for their practice.

Know that your OBLIC policy provides data breach coverage and use available resources in the “Cyber Toolbox” on the OBLIC website to assess the risks for your firm.

The other trend, as exemplified by Opinion 2017-4, is the challenge presented by conflicts of interest. As lawyers make lateral moves between firms or go from private practice to government or encounter conflicts within their firm involving various client situations, conflicts of interest arise. If you have any questions about a potential conflict of interest, please call the OBLIC Hotline to discuss your inquiry.

Conflicts of interest are better addressed sooner than later!

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