{"id":4341,"date":"2006-01-26T17:55:14","date_gmt":"2006-01-26T21:55:14","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2006\/01\/26\/action-alert-guild-bar-columb"},"modified":"2011-08-05T14:54:13","modified_gmt":"2011-08-05T18:54:13","slug":"action-alert-guild-bar-columbus-oh","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2006\/01\/26\/action-alert-guild-bar-columbus-oh\/","title":{"rendered":"action alert: Guild-Bar, Columbus (OH)"},"content":{"rendered":"

<\/a><\/p>\n

\n
If you care about legal ethics and client rights, and can be in <\/span>Columbus, <\/span><\/span><\/div>\n
Ohio, tomorrow afternoon, Jan. 27, please start making plans <\/span>to be at the <\/span><\/span><\/div>\n
headquarters of The Ohio State Bar Association by 1 P.M.\u00a0 If you can’t be <\/span><\/div>\n
there — and especially if you are a member or future member of OSBA or <\/span><\/div>\n
the Ohio Bar — you should also read on, and take action by email or phone, <\/span><\/div>\n
or at your website.<\/span><\/div>\n
\n
As explained below, we believe OSBA\u00a0is (or is about to be) a <\/span><\/div>\n
prime example of our <\/span>Bar & Guild Theory<\/span><\/a>:\u00a0Most bar groups <\/span><\/span><\/span><\/div>\n
spend much of their time\u00a0acting like <\/span>guilds<\/span><\/a> — promoting the <\/span><\/span><\/div>\n
interests of their members, and <\/span>“protecting” the <\/span>public\u00a0from <\/span><\/span><\/span><\/div>\n
competition, information, innovation\u00a0and choice. <\/span><\/span><\/div>\n
<\/span><\/span><\/div>\n
The Urgency<\/em>: On Jan. 27, 2006, the OSBA House of Delegates <\/span><\/span><\/div>\n
will consider whether to support\u00a0a completely revamped set <\/span><\/div>\n
of ethics rules.<\/span><\/div>\n
<\/span><\/div>\n
The two issues I will focus on here are: (1) Should lawyers be <\/span><\/span><\/div>\n
allowed to characterize their fees or rates in ads as \u201cdiscount,\u201d\u00a0 <\/span><\/span><\/span><\/div>\n
\u201ccut-rate,\u201d <\/span><\/span><\/span>\u201clowest,\u201d or \u201cspecial,\u201d when the terms are not used <\/span><\/span><\/span><\/div>\n
in a false of misleading fashion?\u00a0 (2) Should lawyers be required <\/span><\/span><\/div>\n
(for matters bove $500) to communicate in writing with a client <\/span><\/span><\/div>\n
concerning the scope of\u00a0engagement<\/span><\/span> and the basis or rate of <\/span><\/span><\/div>\n
fees and expenses? <\/span><\/span>[You may find other favorite issues that <\/span><\/span><\/div>\n
need your or our attention.] [UPDATE: <\/span><\/span>Our efforts failed. The Ohio Bar included the ban on advertising discount fees in its recommendations to the Ohio Supreme Court, which then included the provision in the Comment to Rule 7.1<\/a>, which has been in effect since February 2007.]<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n

<\/span><\/p><\/blockquote>\n

\n
\"erasing\"<\/span><\/div>\n
<\/div>\n
After lengthy consideration on how to modernize the current Ohio ethics <\/span><\/div>\n
Code<\/span><\/a>, and to bring it more into line with the ABA’s <\/span>Model Rules<\/span><\/a>, a Supreme<\/span><\/div>\n
Court <\/span>Task Force<\/span><\/a> issued its <\/span>Report<\/span><\/a> and <\/span>Proposed Rules<\/span><\/a> (with Comparisons <\/span><\/div>\n
to the Model Rules and the\u00a0current Code)\u00a0for comment, in October 2005. <\/span><\/div>\n
An OSBA ethics subcommittee has also issued its Bar Recommendations<\/a>. <\/span><\/div>\n
As OSBA President <\/span>E. Jane Taylor<\/span><\/a> recently <\/span>announced<\/span><\/a>:<\/span><\/div>\n
\n
On Jan. 27, 2006, at 1\u00a0p.m., the Council of Delegates will hold a <\/span><\/div>\n
special meeting at OSBA Headquarters, 1700 Lake Shore Drive, <\/span><\/div>\n
Columbus, to consider recommendations of the Supreme Court <\/span><\/div>\n
Task Force on Rules of Professional Conduct. <\/span><\/div>\n
<\/div>\n
In addition, all <\/em><\/span>members of the Association\u00a0“have the privilege of the <\/em><\/span><\/div>\n
floor on a <\/em><\/span>parity with delegates<\/em>. . . [and]\u00a0Members wishing to address <\/span><\/div>\n
this <\/span>matter at the upcoming Council of Delegates meeting are asked <\/span><\/div>\n
to communicate their interest to Bill Weisenberg in advance so <\/span><\/div>\n
they can be recognized at the meeting. [you can contact Bill at <\/span><\/div>\n
wweisenberg@ohiobar.org<\/span>;<\/span><\/a> phones<\/em>: (614) 487-8585; (800) 232-7124; <\/span><\/div>\n
FAX (614) 487-8808] <\/span><\/div>\n<\/blockquote>\n<\/div>\n
Here’s why I am concerned and am asking for your help:<\/span><\/span><\/div>\n
<\/span><\/div>\n
First: As\u00a0the ABA eJournal<\/em> <\/span>reported<\/span><\/a> last week, and Carolyn Elefant <\/span><\/span><\/div>\n
at <\/span>My Shingle<\/em> decried<\/span><\/span><\/span><\/a> yesterday (via Lisa at\u00a0Inside Opinions<\/span><\/a><\/em>): <\/span>“Ohio <\/span><\/span><\/div>\n
Bar Won’t Allow Lawyers to Say They Offer Cut Rate Service,” Jan. <\/span><\/div>\n
25, 2006).\u00a0In <\/span>Opinion 2005-9<\/span><\/em><\/a>, (Dec. 2, 2005), the Bar Ethics Committee <\/span><\/div>\n
held that it had no choice but to apply the current Code to the “coupons” <\/span><\/div>\n
in question.\u00a0 Ohio\u00a0Code <\/span>DR- 2-101(A<\/span><\/a>) specifies that a lawyer shall not <\/span><\/div>\n
use any form of publicity that:<\/span><\/div>\n
\n
(5) Contains characterizations of rates or fees chargeable by the <\/span><\/div>\n
lawyer or law firm, such as “cut-rate,” “lowest,” “giveaway,” “below <\/span><\/div>\n
cost,” “discount,” and “special;” however, use of characterizations <\/span><\/div>\n
of rates or fees such as “reasonable” and “moderate” is acceptable. <\/span><\/div>\n<\/blockquote>\n
Clearly, this antiquated rule, which almost certainly violates\u00a01st Amendment <\/span><\/div>\n
commercial speech rights, and would violate antitrust laws if promulgated by <\/span><\/span><\/div>\n
the Association rather than by the Court, <\/span>deserves to be thrown out<\/span>.\u00a0 There is <\/span><\/div>\n
nothing inherently misleading about a discount claim — there is, of course, <\/span><\/div>\n
something inherently competitive<\/em> about them, which might be the rub. R<\/span>ules <\/span><\/span><\/div>\n
such as these, which have been eliminated in all but a few jurisdictions, <\/span>are<\/span><\/span><\/div>\n
wrapped in concern for misleading claims, but “belie\u00a0the legal profession’s<\/span><\/span><\/div>\n
basic dislike of lawyer\u00a0advertising, competition, and affronts to its bloated <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
feelings <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>of self-importance.”\u00a0(see prior post on the NYSBA war<\/a> against adver-<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
tising, and a <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>round-up<\/a> of recent action by the profession’s “dignity police.” <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
They contain excerpts from the ABA and the Federal Trade Commission, <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
on the harm to consumers from broad lawyer advertising bans that are not <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
narrowly <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>tailored to prevent unfair or deceptive acts or practices.<\/span>)<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
“Complaint BillF”<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
The Ohio Supreme Court Task Force recommends new Rules 7.1<\/a> and 7.2, <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
which\u00a0largely<\/em> follow the much-improved ABA Model advertising rules. They <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
move many prohibitions “in deference to constitutional concerns about the <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
regulation of commercial speech.<\/span>” (Task Force Report<\/a>) The <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>Model Rules<\/em> ban <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
only a false or misleading <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>communication — that is, one <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>which “contains a <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
material <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>misrepresentation of fact or law, or omits a fact <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>necessary to make <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
the statement considered as a whole not materially misl<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>eading.”\u00a0 In a <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
Comment to Rule 7.1<\/a>, there is this appropriate conclusion <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>about fees:<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
“[A]n unsubstantiated comparison of the lawyer’s services or fees <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
with the services or fees of other lawyers may be misleading if <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
presented with such specificity as would lead a reasonable person <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
to conclude that the comparison can be substantiated. The inclusion <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
of an appropriate disclaimer or qualifying language may preclude a <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
finding that a statement is likely to create unjustified expectations <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
or otherwise mislead a prospective client.”<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n
It is unfortunate (and misleading), however, that the <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>Proposed<\/a> Ohio <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>Rule 7.1 <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
removes the ban on terms such as “discount” and <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>“cut-rate” from the body<\/em> <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
of the Rule, but insert the provisions again in Comment <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>[4] to Rule 7.1, which <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
states: <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
4] Characterization of rates or fees chargeable by the lawyer or law <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
firm such as \u201ccut-rate,\u201d \u201clowest,\u201d \u201cgiveaway,\u201d \u201cbelow cost,\u201d \u201cdiscount,\u201d <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
or \u201cspecial\u201d is misleading<\/em>. [emphasis added]<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n
It is a per se<\/em> rule making discount advertising by lawyers unethical.\u00a0 That can <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
only have one purpose (eliminating or reducing price competition) and one <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
result: higher prices for consumers of legal services.\u00a0 The higher price will, <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
of course, mean that\u00a0more and\u00a0more Americans will be functionally eliminated <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
from the legal services marketplace, and have their legal needs unmet or met <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>through nonlawyer sources. <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
The drafter of the Task Force Report sounds rather unhappy about this result, <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
reading between the lines.\u00a0 And, the OSBA ethics committee could<\/em> have <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
corrected it, advocating for the Model Rule version, the First Amendment, <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
and competition.\u00a0 However, it did not.\u00a0 The committee’s Recommendations<\/a> <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
adopt <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>the Task Force’s version of the advertising rules in their entirety. <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\"boy The written fee and scope of engagement requirement has a bit <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
of a different posture. <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
The <\/span>current Code<\/span><\/a> says, in relevant part: <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

EC 2-18 <\/strong>As soon as feasible after a lawyer has been employed, <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

it is desirable that he reach a clear agreement with his client as <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

to the basis of the fee charges to be made. Such a course will <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

not only prevent later misunderstanding but will also work for <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

good relations between the lawyer and the client. It is usually <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

beneficial to reduce to writing<\/em> the understanding of the parties <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

regarding the fee, particularly when it is contingent. <\/span><\/span><\/span><\/span><\/span><\/div>\n

<\/span><\/span><\/span><\/p><\/blockquote>\n


\n<\/span><\/span><\/span><\/p>\n

Model Rule 1.5 (b<\/span><\/a>) states that the engagement\/fee agreement\u00a0must be <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

communicated before or within a reasonable <\/em>time after commencing the <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

representation, <\/span> “preferably <\/span>in writing.”\u00a0 But, the Ohio Task Force<\/a> decided <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

to go farther<\/em> — giving, in <\/span>reality, both the client and lawyer more protection, <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

by requiring a written <\/span>agreement unless the matter is expected to cost less <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

than $500. <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n

Rule 1.5 <\/span>(b) The scope of the representation and the basis or <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

rate of the fee and <\/span>expenses for which the client will be responsible <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

shall be communicated to the client in <\/span>writing<\/em>, before or within a <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

reasonable <\/em>time after commencing the representation, unless the <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

lawyer will charge a client whom the lawyer has regularly represented <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

on the same basis as <\/span>previously charged or the fee is $500.00 or less. <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

Any change in the basis or rate of the fee <\/span>or expenses is subject to <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

division (a) of this rule and shall also be promptly communicated <\/span>to <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

the client in writing<\/em>.<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n<\/blockquote>\n


\n<\/span><\/span><\/span><\/p>\n

\"dinosSG\"<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

How did the OSBA “ethics” subcommittee react to this written requirement?<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

The majority<\/em> of the members <\/span>rejected it<\/span><\/a> — with the following eloquent and <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

thoughtful, but remarkably frank analysis: <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n

“A majority of the subcommittee recommended changing Rule 1.2 <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

to eliminate the writing requirement concerning scope of representation <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

and fee-and-expense agreements to prevent violations of that requirement <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

forming the basis of a disciplinary complaint.” <\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n


\n<\/span><\/span><\/span><\/p>\n

Ironically, the OSBA website has a LawFacts e-pamphlet, titled <\/span>Lawyers<\/span><\/a>, <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

which states: <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n

“You should ask the lawyer to put into writing fee and billing agreements <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

to avoid any misunderstanding.”<\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n


\n<\/span><\/span><\/span><\/p>\n

In a modern, information world — with clients who can almost always read and write <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

(and with the scope of representation in more flux than ever ) — many of us surely ask <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

ourselves: “What kind of a lawyer wouldn’t use a written agreement when representing <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

a client.”\u00a0\u00a0 My reply: Exactly the type of lawyer who would oppose this Rule and whose <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

clients most need the\u00a0in-writing\u00a0mandate in Rule 1.5(b)\u00a0for their protection.<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n

“tinyredcheck”\u00a0Ohio consumers need your<\/em> voice\u00a0in support of the proposed <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

Rule <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>1.5(b), and\u00a0to help make it easier for Ohio lawyers <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>to compete <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

on <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>price (with its resulting benefits in innovation and acces)<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>. <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span> <\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

\"courthouse1\" In addition to\u00a0letting the OSBA know how <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>you feel, you can <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

write the Supreme Court<\/span><\/a> <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>of Ohio, which is seeking comments,\u00a0until Feb. <\/em><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

15<\/em>, <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>2006.\u00a0 Ask them <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>to keep the in-writing requirement and to junk <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

the ban on discount advertising. <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/p>\n
\"tiny You might also contact OSBA President <\/span>E. Jane Taylor<\/a><\/span> (click for her <\/span><\/div>\n
firm <\/span>profile and email address), or Robert K. Leonard, Chair of OSBA’s Legal <\/span><\/span><\/div>\n
Ethics and Professional Liability Committee (at\u00a0119 N. West, <\/span><\/span>Lima<\/span>, <\/span>OH <\/span>45801, <\/span><\/span><\/span><\/span><\/div>\n
(419) 228-1020 ,\u00a0\u00a0(419) 228 5490 Fax.<\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/div>\n
\"tiny Please excuse the lateness of this alert.\u00a0 Youf <\/span><\/span><\/span><\/span><\/span><\/span>humble editor <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
learned of the\u00a0OSBA Meeting\u00a0this morning.<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n

<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n<\/div>\n<\/blockquote>\n


\n<\/span><\/span><\/span><\/p>\n

<\/p>\n
<\/span><\/span><\/span><\/span>Ohio weblogers (and other concerned citizens), please do whatever you can at <\/span><\/div>\n

<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

your website to help bring Ohio’s lawyer ethics rules into the 21st Century and the<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

era of Consumer Sovereignty.\u00a0\u00a0\u00a0 How about it, Modern Esquire<\/em><\/a><\/span>; Dale Oesterle at <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

Business Law Prof<\/em><\/span><\/a>; the (in)famous <\/span><\/span>Law Dork<\/em><\/span><\/a>, Chris Geidner; the anonymous <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

proprietor of <\/span>Law v. Life<\/em><\/span><\/a> (who recently started to take <\/span>criminal cases<\/span><\/a>, too); <\/span><\/span>Prof. <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

Dan Tokaji of Equal Vote<\/span><\/a><\/em><\/span>; and Prof. Douglas A. Berman\u00a0at the award-winning <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

Sentencing Law & Policy <\/span><\/a>?<\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n
p.s.<\/strong><\/em> In August 2003, in a moment of deep insight and\/or cynicism, I <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

suggested<\/span><\/a> <\/span><\/span>the following Warning be placed on all bar association <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

websites:<\/span> <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n

Warning<\/strong>:\u00a0 We are a guild, here to serve the\u00a0economic interests of our <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

members.\u00a0 We’ll\u00a0fight (’til your last dollar) to protect you from any legal <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

adversary and to secure your legal rights.\u00a0 However, when it comes to <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

your financial interests versus our own, we will put ours first whenever <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

possible. <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n<\/blockquote>\n<\/div>\n<\/blockquote>\n<\/blockquote>\n


\n<\/span><\/span><\/span><\/p>\n

<\/p>\n
afterthought<\/span><\/strong><\/em> (Jan. 27, 2006):\u00a0 Another aspect of the Proposed <\/span><\/span><\/div>\n
Rule 1.5 bothers me — the Model Rule 1.5<\/a>‘s ban on “unreasonable” <\/span><\/div>\n
fees or expenses is rejected in favor of keeping the current ban in <\/span><\/div>\n
Ohio’s DR 2-106<\/span><\/a> on “clearly excessive” fees.\u00a0 Furthermore, the <\/span><\/div>\n
fee, to be excessive, under the current and<\/em> the proposed rule<\/a>, <\/span><\/div>\n
must leave a “lawyer<\/em> of ordinary prudence” <\/span>with “a definite and firm<\/em> <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
conviction that <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>the fee is in <\/span>excess <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>of a <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>reasonable <\/em>fee.” [emphasis <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
added] (Apparently a layperson on any Ohio grievance committee <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
cannot apply his or her own prudent judgment on the excessiveness <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
of a fee, after studying the <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span>circumstances.\u00a0That’s one more concern)<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\"complaint<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/div>\n
Good lawyers use or <\/span>choose particular words purposefully. <\/span>Here, <\/span><\/div>\n
it is hard to avoid the <\/span>conclusion that merely banning “unreasonable” <\/span><\/div>\n
fees <\/span>seemed too harsh for Ohio’s lawyers.\u00a0 Indeed, even a ban on <\/span><\/div>\n
“ex<\/span>cessive” fees was apparently too draconian — a fee needs to be <\/span><\/div>\n
“clearly” excessive to be unethical. <\/span><\/div>\n
\n
\"tiny I do not buy the excuse, if offered by the<\/span><\/div>\n
Task Force and the Bar committee, that <\/span>the <\/span><\/div>\n
benefits of continuity outweighed adoption <\/span>of <\/span><\/div>\n
the standard used in most jurisdictions.\u00a0Keeping <\/span><\/div>\n
the “clearly excessive” standard is a clear signal<\/em> <\/span><\/div>\n
that the burden of proof for anyone challenging a <\/span><\/div>\n
fee is extremely high — so that few, if any, fees will <\/span><\/div>\n
be held to be excessive by your peers.\u00a0 If your fee <\/span><\/div>\n
isn’t illegal or <\/span>fraudulent (e.g<\/em>., demonstrably padded), <\/span><\/div>\n
you’re safe <\/span>in Ohio.<\/span><\/div>\n<\/blockquote>\n
One final point of irony:\u00a0 The current Ohio Publicity Rule, <\/span>DR 2-101<\/span><\/strong><\/a> (5), <\/span><\/div>\n
prohibits the advertising\u00a0of fees as being “discount,” but allows you to <\/span><\/div>\n
call your fees\u00a0“<\/span>reasonable” and “moderate.”<\/span> Comment [4] to Proposed <\/span><\/div>\n
advertising rule 7.1, also declares discount claims to be misleading <\/span><\/div>\n
and therefore banned. Notice how this ties in with the current and <\/span><\/div>\n
proposed ethics rules on fees: any legal fee that is not “clearly exces-<\/span><\/div>\n
sive” is “reasonable” in Ohio.\u00a0 It makes you wonder which is more likely <\/span><\/div>\n
to mislead the public, a “discount” claim by a lawyer whose fees are <\/span><\/div>\n
genuinely lower than the local norm, or a “reasonable” claim by an <\/span><\/div>\n
Ohio lawyer whose fees are just shy of being “clearly excessive.” <\/span><\/div>\n

<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

\"erasingS\"<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n
fresh snow
\nfor the hands,
\nfor the face<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/p>\n

applauding <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

the mime<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

in our mittens<\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n


\n<\/span><\/span><\/span><\/span><\/p>\n
under the <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

blackest doodle <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

something unerasable<\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

John Stevenson<\/strong><\/span><\/a> <\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

“applauding the mime” – <\/span>Quiet Enough<\/em><\/span><\/strong><\/a> (2004)<\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

“under the” – Something Erasable<\/em> (1995)<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/span><\/p>\n

“<\/span><\/em>fresh snow<\/span><\/em><\/a>“<\/em>– The Heron’s Nest<\/em> (June 2005)<\/span><\/span><\/span> <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

\"columbus\"<\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/span><\/span><\/p>\n

<\/span><\/span><\/span><\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/blockquote>\n

<\/span><\/span><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 If you can’t be there — and especially if you are a member or future member of OSBA […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[2926],"tags":[],"class_list":["post-4341","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-181","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4341","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=4341"}],"version-history":[{"count":3,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4341\/revisions"}],"predecessor-version":[{"id":12812,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4341\/revisions\/12812"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=4341"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=4341"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=4341"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}