If you care about legal ethics and client rights, and can be in Columbus,
Ohio, tomorrow afternoon, Jan. 27, please start making plans to be at the
headquarters of The Ohio State Bar Association by 1 P.M. If you can’t be
there — and especially if you are a member or future member of OSBA or
the Ohio Bar — you should also read on, and take action by email or phone,
or at your website.
As explained below, we believe OSBA is (or is about to be) a
spend much of their time acting like guilds — promoting the
interests of their members, and “protecting” the public from
competition, information, innovation and choice.
The Urgency: On Jan. 27, 2006, the OSBA House of Delegates
will consider whether to support a completely revamped set
of ethics rules.
The two issues I will focus on here are: (1) Should lawyers be
allowed to characterize their fees or rates in ads as “discount,”
“cut-rate,” “lowest,” or “special,” when the terms are not used
in a false of misleading fashion? (2) Should lawyers be required
(for matters bove $500) to communicate in writing with a client
concerning the scope of engagement and the basis or rate of
fees and expenses? [You may find other favorite issues that
need your or our attention.]
After lengthy consideration on how to modernize the current Ohio ethics
to the Model Rules and the current Code) for comment, in October 2005.
On Jan. 27, 2006, at 1 p.m., the Council of Delegates will hold a
special meeting at OSBA Headquarters, 1700 Lake Shore Drive,
Columbus, to consider recommendations of the Supreme Court
Task Force on Rules of Professional Conduct.
In addition, all members of the Association ”have the privilege of the
floor on a parity with delegates. . . [and] Members wishing to address
this matter at the upcoming Council of Delegates meeting are asked
to communicate their interest to Bill Weisenberg in advance so
they can be recognized at the meeting. [you can contact Bill at
FAX (614) 487-8808]
Here’s why I am concerned and am asking for your help:
First: As the ABA eJournal reported last week, and Carolyn Elefant
Bar Won’t Allow Lawyers to Say They Offer Cut Rate Service,” Jan.
25, 2006). In Opinion 2005-9, (Dec. 2, 2005), the Bar Ethics Committee
held that it had no choice but to apply the current Code to the “coupons”
in question. Ohio Code DR- 2-101(A) specifies that a lawyer shall not
use any form of publicity that:
(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.
Clearly, this antiquated rule, which almost certainly violates 1st Amendment
commercial speech rights, and would violate antitrust laws if promulgated by
the Association rather than by the Court, deserves to be thrown out. There is
nothing inherently misleading about a discount claim — there is, of course,
something inherently competitive about them, which might be the rub. Rules
such as these, which have been eliminated in all but a few jurisdictions, are
wrapped in concern for misleading claims, but “belie the legal profession’s
basic dislike of lawyer advertising, competition, and affronts to its bloated
feelings of self-importance.” (see prior post on the NYSBA war against adver-
tising, and a round-up of recent action by the profession’s “dignity police.”
They contain excerpts from the ABA and the Federal Trade Commission,
on the harm to consumers from broad lawyer advertising bans that are not
narrowly tailored to prevent unfair or deceptive acts or practices.)
“Complaint BillF”
The Ohio Supreme Court Task Force recommends new Rules 7.1 and 7.2,
which largely follow the much-improved ABA Model advertising rules. They
move many prohibitions “in deference to constitutional concerns about the
regulation of commercial speech.” (Task Force Report) The Model Rules ban
only a false or misleading communication — that is, one which “contains a
material misrepresentation of fact or law, or omits a fact necessary to make
the statement considered as a whole not materially misleading.” In a
“[A]n unsubstantiated comparison of the lawyer’s services or fees
with the services or fees of other lawyers may be misleading if
presented with such specificity as would lead a reasonable person
to conclude that the comparison can be substantiated. The inclusion
of an appropriate disclaimer or qualifying language may preclude a
finding that a statement is likely to create unjustified expectations
or otherwise mislead a prospective client.”
It is unfortunate (and misleading), however, that the Proposed Ohio Rule 7.1
removes the ban on terms such as “discount” and “cut-rate” from the body
of the Rule, but insert the provisions again in Comment [4] to Rule 7.1, which
states:
4] Characterization of rates or fees chargeable by the lawyer or law
firm such as “cut-rate,” “lowest,” “giveaway,” “below cost,” “discount,”
or “special” is misleading. [emphasis added]
It is a per se rule making discount advertising by lawyers unethical. That can
only have one purpose (eliminating or reducing price competition) and one
result: higher prices for consumers of legal services. The higher price will,
of course, mean that more and more Americans will be functionally eliminated
from the legal services marketplace, and have their legal needs unmet or met
through nonlawyer sources.
The drafter of the Task Force Report sounds rather unhappy about this result,
reading between the lines. And, the OSBA ethics committee could have
corrected it, advocating for the Model Rule version, the First Amendment,
adopt the Task Force’s version of the advertising rules in their entirety.
The written fee and scope of engagement requirement has a bit
of a different posture.
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.
communicated before or within a reasonable time after commencing the
representation, ”preferably in writing.” But, the Ohio Task Force decided
to go farther — giving, in reality, both the client and lawyer more protection,
by requiring a written agreement unless the matter is expected to cost less
than $500.
Rule 1.5 (b) The scope of the representation and the basis or
rate of the fee and expenses for which the client will be responsible
shall be communicated to the client in writing, before or within a
reasonable time after commencing the representation, unless the
lawyer will charge a client whom the lawyer has regularly represented
on the same basis as previously charged or the fee is $500.00 or less.
Any change in the basis or rate of the fee or expenses is subject to
division (a) of this rule and shall also be promptly communicated to
the client in writing.
How did the OSBA “ethics” subcommittee react to this written requirement?
The majority of the members rejected it — with the following eloquent and
thoughtful, but remarkably frank analysis:
“A majority of the subcommittee recommended changing Rule 1.2
to eliminate the writing requirement concerning scope of representation
and fee-and-expense agreements to prevent violations of that requirement
forming the basis of a disciplinary complaint.”
Ironically, the OSBA website has a LawFacts e-pamphlet, titled Lawyers,
which states:
“You should ask the lawyer to put into writing fee and billing agreements
to avoid any misunderstanding.”
In a modern, information world — with clients who can almost always read and write
(and with the scope of representation in more flux than ever ) — many of us surely ask
ourselves: “What kind of a lawyer wouldn’t use a written agreement when representing
a client.” My reply: Exactly the type of lawyer who would oppose this Rule and whose
clients most need the in-writing mandate in Rule 1.5(b) for their protection.
“tinyredcheck” Ohio consumers need your voice in support of the proposed
Rule 1.5(b), and to help make it easier for Ohio lawyers to compete
on price (with its resulting benefits in innovation and acces).
In addition to letting the OSBA know how you feel, you can
15, 2006. Ask them to keep the in-writing requirement and to junk
the ban on discount advertising.
firm profile and email address), or Robert K. Leonard, Chair of OSBA’s Legal
Ethics and Professional Liability Committee (at 119 N. West, Lima, OH 45801,
(419) 228-1020 , (419) 228 5490 Fax.
Please excuse the lateness of this alert. Youf humble editor
learned of the OSBA Meeting this morning.
Ohio weblogers (and other concerned citizens), please do whatever you can at
your website to help bring Ohio’s lawyer ethics rules into the 21st Century and the
era of Consumer Sovereignty. How about it, Modern Esquire; Dale Oesterle at
Dan Tokaji of Equal Vote; and Prof. Douglas A. Berman at the award-winning
p.s. In August 2003, in a moment of deep insight and/or cynicism, I
suggested the following Warning be placed on all bar association
websites:
Warning: We are a guild, here to serve the economic interests of our
members. We’ll fight (’til your last dollar) to protect you from any legal
adversary and to secure your legal rights. However, when it comes to
your financial interests versus our own, we will put ours first whenever
possible.
afterthought (Jan. 27, 2006): Another aspect of the Proposed
fees or expenses is rejected in favor of keeping the current ban in
Ohio’s DR 2-106 on “clearly excessive” fees. Furthermore, the
must leave a “lawyer of ordinary prudence” with “a definite and firm
conviction that the fee is in excess of a reasonable fee.” [emphasis
added] (Apparently a layperson on any Ohio grievance committee
cannot apply his or her own prudent judgment on the excessiveness
of a fee, after studying the circumstances. That’s one more concern)
Good lawyers use or choose particular words purposefully. Here,
it is hard to avoid the conclusion that merely banning “unreasonable”
fees seemed too harsh for Ohio’s lawyers. Indeed, even a ban on
“excessive” fees was apparently too draconian — a fee needs to be
“clearly” excessive to be unethical.
I do not buy the excuse, if offered by the
Task Force and the Bar committee, that the
benefits of continuity outweighed adoption of
the standard used in most jurisdictions. Keeping
the “clearly excessive” standard is a clear signal
that the burden of proof for anyone challenging a
fee is extremely high — so that few, if any, fees will
be held to be excessive by your peers. If your fee
isn’t illegal or fraudulent (e.g., demonstrably padded),
you’re safe in Ohio.
One final point of irony: The current Ohio Publicity Rule, DR 2-101 (5),
prohibits the advertising of fees as being “discount,” but allows you to
call your fees ”reasonable” and “moderate.” Comment [4] to Proposed
advertising rule 7.1, also declares discount claims to be misleading
and therefore banned. Notice how this ties in with the current and
proposed ethics rules on fees: any legal fee that is not “clearly exces-
sive” is “reasonable” in Ohio. It makes you wonder which is more likely
to mislead the public, a “discount” claim by a lawyer whose fees are
genuinely lower than the local norm, or a “reasonable” claim by an
Ohio lawyer whose fees are just shy of being “clearly excessive.”
fresh snow
for the hands,
for the face
applauding
the mime
in our mittens
under the
blackest doodle
something unerasable
“under the” - Something Erasable (1995)
