Bad ethics opinion or the worst ethics opinion? – Ohio 2015-2 edition

Let’s play a little game called:  Bad ethics opinion or the worst ethics opinion?

Earlier this month, the Supreme Court of Ohio Board of Professional Conduct issued Opinion 2015-2 about whether/how a lawyer presenting at a legal seminar can distribute brochures to prospective clients and whether the lawyer can answer legal questions posed by the attendees at the end of the seminar.  You can go read the opinion here.  Go ahead, go read it.  I’ll wait.  You’ll probably figure out its multitude of flaws on your own, but if you don’t, you can come back here and continue reading.

So, now that you’ve read it (or just moved straight to this next paragraph to get the skinny), the Ohio Board concluded that a lawyer speaking to prospective clients at a legal seminar can make brochures and firm materials available somewhere near the exit but cannot personally hand the materials out.  That’s stupid, but not necessarily stupid wrong.  Just stupid in the general way that attorney ethics rules which appear to assume pliability of other human beings can end up being a bit stupid in their application a lot of the time.  Unlike the next topic, it at least stems from a plausible reading of Ohio’s RPC 7.3.

It’s the second conclusion offered by the Board that is stupid wrong.  Here’s the question being addressed by the Ohio Board –

May a lawyer stay after a seminar to answer follow-up questions of attendees or meet with attendees who sign-up to meet with a lawyer in advance of a seminar?

This should be a fairly straightforward question to answer, right?  Lawyer gives a talk to large group.  Lawyer doesn’t say to large group – “hey, hire me.”  Rather, lawyer attempts to demonstrate knowledge of area of law in hopes that s/he will convince one or more people in attendance that they might do well to retain lawyer for services.  At end of presentation, grown-up, functional, human being voluntarily approaches lawyer to ask a question.  What does the Ohio Board say about what can happen next?

A lawyer may not remain after a seminar to discuss personalized legal needs of attendees, even if attendees sign up to meet with the lawyer in advance of the seminar.  Instead, if attendees wish to meet with the lawyer, the attendees should be directed to call the law office and schedule an appointment to meet with the lawyer, or be instructed to contact a lawyer of their choice.

Seriously?  As part of the ultimate explanation for their conclusion, the Ohio Board states that “[t]he lawyer cannot be the person to initiate contact with the prospective client following a presentation at a legal seminar.”

Which of those words is it that the Ohio Board does not understand the meaning of?  It seems pretty clear that they don’t know what the word “initiate” means.  There could be others that are tripping them up, I guess.

If the person has come up to the lawyer at the end of the seminar and asked a question, the lawyer has not initiated the contact.  This is not rocket science.  The ability of the Ohio Board to get this so badly wrong though is solid proof that, for some reason, smart lawyers’ brains turn to mush when they address questions of marketing.  It is also an indication of why alternative sources of legal assistance are making such a dent in the marketplace for legal services.

Luckily, even if I find myself speaking in Ohio (though I’m pretty sure no one from the Ohio Board will be inviting me any time soon), I won’t have to worry about compliance with the convoluted approach to their rules articulated in Opinion 2015-2, as even the Ohio Board acknowledges that none of these restrictions are necessary if the attendees of the seminar are also lawyers because solicitation of lawyers is not prohibited in the same way under Ohio RPC 7.3.

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