Can out-of-state attorneys send direct mail to Ohio members of a class action?

Plain-English summary

The Board addressed whether out-of-state attorneys representing limited partners in class action litigation against a general partner may communicate with Ohio class members through direct mail. It began with DR 2-101(B), which permits a lawyer to communicate with potential consumers through mailed material subject to DR 2-102 through 2-105 and compliant with DR 2-101(A), and with the constitutional foundation in Shapero v. Kentucky Bar Ass'n and In re Primus. The Board read DR 2-104(A)(5) (a lawyer may accept, but not seek, employment from those contacted for class-action joinder) together with DR 2-104(B) to mean that the "may not seek" language was not intended to bar direct-mail communication with potential class members or acceptance of resulting employment.

The Board noted that class communications are not governed solely by the Code, citing the Model Rule 7.2 comment that the rules do not prohibit communications authorized by law such as notice to class members, and discussing the limits on judicial restriction of class communications under Gulf Oil Co. v. Bernard and its progeny. It then reviewed the publicity provisions that guard against abuse: DR 2-101(A) (no false, fraudulent, misleading, or deceptive communication) and DR 2-101(C) (defining false and misleading communication), explaining that claims of special out-of-state ability, self-laudatory comparisons, or implications that a case would be decided other than on its merits would be improper. The Board reminded that direct mail is also subject to DR 2-102 (letterhead), DR 2-103 (recommendation of employment), DR 2-104, and DR 2-105 (specialization), and that these rules apply to out-of-state lawyers regardless of whether their home state follows the Model Code or Model Rules.

The Board concluded that the Code does not ban such direct-mail communication or acceptance of resulting employment, provided it complies with DR 2-101 through 2-105 and with applicable statutes, civil rules of procedure, and case law; within that framework, out-of-state attorneys may communicate with Ohio class members by direct mail.

Currency note

This opinion issued in 1992 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). The Board's status list also notes it is not current due to subsequent rule amendments to DR 2-101 through DR 2-105. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can out-of-state lawyers mail Ohio members of a class action?

A: Under this opinion, yes; the Board concluded the Code does not ban direct-mail communication with potential or actual class members, provided it complies with DR 2-101 through 2-105 and applicable law.

Q: Doesn't DR 2-104(A)(5) say a lawyer may not "seek" class employment?

A: The opinion read DR 2-104(A)(5) together with DR 2-104(B) to mean the "may not seek" language was not intended to bar direct-mail communication with potential class members or acceptance of resulting employment.

Q: Are there limits on what the mailing can say?

A: Yes. The opinion explained that under DR 2-101(A) and (C) the communication may not be false or misleading, including claims of special out-of-state ability, self-laudatory comparisons, or implications a case would be decided other than on its merits.

Background and rules framework

The opinion interprets the former Code of Professional Responsibility DR 2-101 (publicity, including DR 2-101(B) permitted methods and DR 2-101(C) false-and-misleading definition), DR 2-103(A) (recommendation of employment), DR 2-104 and DR 2-104(A)(5) (class-action joinder), and DR 2-105 (specialization), with reference to the Model Rule 7.2 comment and the federal class-communication case law.

Citations and references

Rules of Professional Responsibility (Ohio, former):

• DR 2-101(A), (B), (C), publicity and false-or-misleading communication
• DR 2-103(A); DR 2-104 and DR 2-104(A)(5); DR 2-105

Model Rules of Professional Conduct:

• MR 7.2 comment, communications authorized by law (class-action notice)

Cases:

• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); In re Primus, 436 U.S. 412 (1978)
• Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), limits on restricting class communications

Other opinions cited:

• ABA Informal Op. 1469 (1981); Alabama State Bar Op. RO 89-57 (1989): letters to prospective class members

See also

• Ohio BPC Op. 1990-021: Targeted Direct Mail Solicitation
• Ohio BPC Op. 1988-003: Legal Aid Lawyer Direct-Mail Solicitation
• Ohio BPC Op. 1991-004: Trade Name, Multistate Firm, Direct Mail, and Fee Division
• Ohio BPC Op. 1991-026: Attorney Soliciting Legal Employment From a Business

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-92-002.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 92-2
Issued February 14, 1992

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

[Not current-subsequent rule amendments to DR 2-101 through DR 2-105.]

SYLLABUS: The Code of Professional Responsibility does not ban direct mail communication from named plaintiffs and their counsel to potential or actual class members during the pendency of a class action, nor does the Code prohibit the attorney from accepting employment in response to such advertising. However, such communication must be in compliance with Disciplinary Rules 2-101 through 2-105. Further, since communications in class action suits are not governed solely by the Code of Professional Responsibility such communications must comply with applicable statutes, civil rules of procedure, and case law. Within this framework of restrictions, out-of-state attorneys representing limited partners in class action litigation against a general partner may communicate with potential or actual class members in Ohio through direct mail.

OPINION: The question presented is whether out-of-state attorneys representing limited partners in class action litigation against a general partner, may communicate with members of the class in Ohio through direct mail.

It is well settled that an attorney may communicate with potential clients through direct mail. Such authorization is found within Disciplinary Rule 2-101(B) of the Code of Professional Responsibility. Disciplinary Rule 2-101 (B) states that

[i]n order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-102 through DR 2-105, information in print media, in written or printed material distributed to consumers through the mail or otherwise; or over radio or television. The information disclosed by the lawyer in such publication or broadcast shall comply with DR 2-101 (A).

The constitutional basis for the disciplinary rule is established in case law. See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) (prohibiting categorical bans on targeted direct mail advertising); and In re Primus, 436 U.S. 412 (1978) (allowing letter to lay person regarding availability of free legal assistance from a nonprofit organization with which the lawyer was affiliated). In keeping with the disciplinary rule and case law, this Board has in the past acknowledged the propriety of direct mail communication with potential clients so long as the communications are in compliance with disciplinary rules. See Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Ops. 91-4 (1991), 90-21 (1991), and 88-3 (1988).

Several related provisions of Disciplinary Rule 2-104 support the view that it is not improper for a lawyer to communicate with potential members of class actions suits. These provisions are set forth below.

DR 2-104 (A) A lawyer who has given unsolicited advice to a layman that he should obtain counselor take legal action shall not accept employment resulting from that advice, except that:

(A) (5) If success in asserting rights or defenses of his 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 purposes of obtaining their joinder.

(B) Nothing in this Rule prohibits a lawyer from accepting employment received in response to his own advertising, provided such advertising is in compliance with DR 2-101.

When read by itself, Disciplinary Rule 2-104 (A) (5) may engender some confusion since it is both permissive and restrictive: A lawyer may accept employment from those contacted for the purposes of obtaining their joinder, but may not seek employment from those contacted. When read along with Disciplinary Rule 2-104 (B) a reasonable interpretation is that the "may not seek employment" prohibition of Disciplinary Rule 2-104 (A) (5) was not intended to prohibit an attorney from direct mail communication with potential members of a class action suit nor from accepting employment in response to the advertising.

It should be noted that communications in class action suits are not governed solely by the Code of Professional Responsibility. The Model Rules acknowledge this by stating that the Model Rules do not prohibit "communications authorized by law such as notice to members of a class in class action litigation." See Model Rule 7.2 comment.

Under Rule 23 (d) of the Federal Rules of Civil Procedure courts have authority to make appropriate orders in class actions, including orders regarding class communications. However, such authority is not without limits. In Gulf Oil Co. v. Bernard, the Supreme Court considered the scope of a district court's authority to limit communications from named plaintiffs and their counsel to prospective class members, during the pendency of a class action and held that the District Court exceeded its authority under the Federal Rules of Civil Procedure and abused its discretion. 452 U.S. 89, 91, 104 (1981).

The district court's order, inter alia, imposed a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court. Id. at 95. Following Gulf Oil, gag orders that create obstacles to class action litigation have been disfavored. See Williams v. United States District Court, 658 F.2d (6th Cir.1981), cert. denied, 454 U.S. 1128 (1981); Marmol v. Adkins, 655 F.2d (5th Cir. 1981). However, some restrictions on communications are permissible; for example, when there is statutory authority, Champion International Corp. v. McKenna, 747 F.2d 1211 (8th Cir. 1984) or when there is evidence of abuse, Reed v. American Steamship Co., 682 F. Supp. 333 (E.D. Mich. 1988).

In Gulf Oil, the Court acknowledged that class actions serve important functions in the civil justice system, namely, disposing of common interests or common questions of law or fact in a single lawsuit and vindicating rights of individuals which if litigated individually the cost would consume the result. 452 U.S. at 99, 100 n.11 [citing Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 338 (1980) and Rodgers v. United States Steel Corp., 508 F.2d 152, 163 (3rd Cir.), cert. denied, 423 U.S. 832 (1975)]. The court also acknowledged there were potential abuses associated with communications to class members such as heightened susceptibilities of nonparty class members and increased opportunities, of parties or counsel to increase participation in the proceeding. Id. at 100 n.12 [citing Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782 (ED La. 1977)]. However, the Court stated that the mere possibility of abuses in class action suits did not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with Federal Rules of Procedure. Id. at 104.

The possibility of abuses in class action suits does warrant a review of the publicity provisions of the Code of Professional Responsibility. The publicity provisions guard against such abuses. As already stated, Disciplinary Rule 2-101 (B) allows direct mail communication subject to Disciplinary Rules 2-102 through 2-105 and if in compliance with Disciplinary Rule 2-101 (A). The requirement of Disciplinary Rule 2-101 (A) is that a lawyer may not "use, or participate in the use of, any form of communication containing a false, fraudulent, misleading, or deceptive statement or claim." Disciplinary Rule 2-101 (C) describes false and misleading communication.

DR 2-101(C) A communication is false and misleading if it:

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; or

3. Is subjectively self-laudatory, or compares a lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

Communication that states or implies that an out-of-state lawyer has special abilities to get results or special competence is false and misleading. Communication that unverifiably praises self and denigrates other lawyers is false and misleading. Communication that indicates that a pending case would be decided other than on its merits is also misleading and inappropriate.

As set forth in DR 2-101 (B), direct mail advertising in addition to complying with DR 2-101 (A) is subject to DR 2-102 through DR 2-105. These rules should be reviewed thoroughly by attorneys. Disciplinary Rule 2-102, inter alia, regulates a lawyer's or law firm's use of letterhead. Disciplinary Rule 2-103 sets forth rules regarding recommendations of professional employment. Disciplinary Rule 2-103 (A) provides that "[a] lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer, except as provided in DR 2-101." This rule would apply to communications between an attorney and potential or actual members of a class. Disciplinary Rule 2-104 has already been addressed in this opinion. Disciplinary Rule 2-105, with certain exceptions not applicable here, prohibits a lawyer and a law firm from holding themselves out as specialists. Disciplinary Rule 2-105 (A) (5) allows a lawyer to state that his or her law practice consists in large part or is limited to a field or fields of law.

The disciplinary rules are applicable to all out-of-state lawyers regardless of whether they are licensed in states that follow the Model Code or the Model Rules. Both the Model Code and the Model Rules prohibit a lawyer from practicing law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction. See Model Code of Professional Responsibility DR 3-101 (B) and Model Rules of Professional Conduct Rule 5.5 (a).

The Board is aware of an advisory opinion issued by the American Bar Association advising that "[t]he sending of a letter by an attorney to potential members of a class action informing them of a possible legal claim is not prohibited under the Model Code of Professional Responsibility if the lawyer's intent is to strengthen the case of his client and if the lawyer will not represent the recipients of the letter." ABA, Standing Comm. on Ethics and Professional Responsibility, Informal Op. 1469, (1981). The narrowly tailored advice of this opinion is of limited guidance to the Board in answering the question presented for two reasons. One reason is that the committee did not clearly set forth whether the fact that the lawyer declined to represent any recipient made the direct communication proper. Secondly, the opinion was issued one month after Gulf Oil but did not address the Gulf Oil decision. In the years since Gulf Oil, one state's ethics committee advised that a lawyer may send letters to prospective members of a class action suit provided the letters conform to the advertising rules and the lawyer does not contact individuals by telephone or in person. Alabama State Bar, Op. RO 89-57 (1989).

In conclusion, this Board's advice is that the Code of Professional Responsibility does not ban direct mail communication from named plaintiffs and their counsel to potential or actual class members during the pendency of a class action, nor does the Code prohibit the attorney from accepting employment in response to such advertising. However, such communication must be in compliance with Disciplinary Rules 2-101 through 2-105. Further, since communications in class action suits are not governed solely by the Code of Professional Responsibility such communications must comply with applicable statutes, civil rules of, procedures, and case law. Within this framework of restrictions, out-of-state attorneys representing limited partners in class action litigation against a general partner may communicate with potential or actual class members in Ohio through direct mail.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.