Lawyer Ethics FAQs

Answers to frequently asked questions are written by the legal staff of the Board of Professional Conduct.  The answers do not represent the formal opinion of the Board of Professional Conduct unless a formal advisory opinion is referenced.

Prospective Clients

Does a lawyer owe any duty of confidentiality to someone who meets with, but never retains, the lawyer?


  • Yes. When a prospective client shares information with a lawyer, the lawyer has a duty not to reveal or use the information, even when the lawyer is not retained. Prof.Cond.R. 1.18.




May a lawyer provide a second opinion to a client of another lawyer?


  • Yes, a lawyer may provide a second opinion to a client of another lawyer. Prof.Cond.R. 4.2 is intended to prevent possible overreaching and interference by other lawyers involved in a matter. It is also intended to prevent uncounseled disclosure by the client of information potentially harmful to the representation. Seeking a second opinion from a lawyer not involved in a matter does not expose the represented client to the same risks. A client has the right to choose the lawyer of his or her choice. Lawyers in the position of offering a second opinion to a client of another lawyer should keep in mind the prohibitions on solicitation found in Prof.Cond.R. 7.3.





IOLTA

I am closing my practice and have a remaining balance in my IOLTA.  What is my responsibility concerning the remaining funds?


  • Unclaimed funds result from either a balance left in the trust account for a client a lawyer can no longer locate, from outstanding checks, or funds transferred for the purpose of covering bank fees. Any unclaimed trust account funds, other than those originally placed by the lawyer for covering bank fees, must be transferred to the Department of Commerce, Unclaimed Funds Division. Before transferring the funds to the Department of Commerce, the lawyer should exercise reasonable efforts to determine and notify the owner of the funds. See Adv. Op. 2008-03.





Clients and Files

What files am I obligated to turn over to a client?


  • At the termination of representation, “client papers and property” in a client file are subject to surrender at the request of the client, including: documents provided to the lawyer by the client (medical or financial records and original documents), written and electronic correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items necessary to the client’s representation. Prof.Cond.R. 1.16(d); Ohio Ethics Guide: Client File Retention. Examples of papers the lawyer need not surrender to the client include: a lawyer’s notes and internal office memoranda. However, a lawyer’s notes regarding facts about the case will most likely be an item reasonably necessary to a client’s representation. If a lawyer’s notes include items reasonably necessary to a client’s representation, a lawyer may ethically redact from the notes those items deemed unnecessary. See Adv. Op. 2010-02.




May I charge my client for the cost to copy a physical client file?


  • No. A lawyer may not charge a client the costs incurred to produce a copy of a client file. Prof.Cond.R. 1.16[8A]. See Adv. Op. 2010-02.




How long must I keep a client’s file after termination of representation?


A lawyer may hold a client’s file for an indefinite period of time, communicate and give notice to the client when the file will no longer be retained, or transfer the file immediately upon termination of the representation. The Rules of Professional Conduct do not prescribe a specific period of time for retention. However, IOLTA records must be retained for seven years after the termination of representation. Prof.Cond.R. 1.15(a). See Ohio Ethics Guide: Client File Retention.




Must a court appointed lawyer withdraw when a client has filed a grievance against him?


  • The Rules of Professional Conduct do not mandate withdrawal if a client has filed a grievance against a court appointed lawyer. However, the lawyer may request to withdraw if there is a substantial risk that his ability to recommend, consider, or carry out appropriate course of action is limited by his own personal interest. Prof.Cond.R. 1.7(a)(2). When a lawyer has been appointed to represent a client, ordinarily he must seek the court’s permission to withdraw. Prof.Cond.R. 1.16, cmt. [3]. If the lawyer intends to continue representation after a grievance has been filed, it is recommended that he seek informed written client consent. Prof.Cond.R. 1.7(b)(2).




How can a lawyer ethically withdraw without telling the court why withdrawal is necessary?


  • A lawyer may state in his or her motion to withdrawal that “professional considerations” require him or her to withdraw in order to avoid revealing confidential information protected by Prof.Cond.R. 1.6. Prof.Cond.R. 1.16, cmt.[3]. The comment further provides that such a statement should ordinarily be accepted by the court “as sufficient.” See also ABA Formal Opinion 476 (Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation.)




What should I do if I suspect my client is suffering from diminished capacity?


  • When a lawyer suspects that a client lacks capacity to make adequately considered decisions in connection with a representation the lawyer must endeavor to maintain as much as possible a normal client-lawyer relationship. Even clients with diminished capacity may have the ability to understand, deliberate, and reach conclusions regarding their own well-being. A lawyer must treat clients with diminished capacity with attention, respect, and maintain communication as required by the rules. When assisting clients with diminished capacity, lawyers should endeavor to take the least restrictive action possible to assist the client. A lawyer may wish to have family members or other persons participate in discussions with the lawyer and client. When a lawyer reasonably believes that a client is at risk of substantial physical, financial, or other harm unless action is taken, and the client cannot adequately act in her or her own interest, the lawyer may act to protect the client and may seek the appointment of a guardian ad litem, conservator, or guardian. Prof.Cond.R. 1.14.




What should counsel do when a client with diminished capacity in criminal matter already has a guardian appointed as a result of probate court proceedings and the guardian and defense counsel disagree about how to proceed in the criminal matter?


  • Even if a client has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication with the client. Prof.Cond.R. 1.14, cmt. [2]. However, “if a legal representative has already been appointed for a client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.” Id. at cmt. [4]. Thus, defense counsel should look to the representative to make decisions on behalf of the client, unless those decisions are going to put the client at a risk of substantial physical, financial, or other harm unless further protective action is taken. If the difference in opinion between counsel’s recommended course of action and the guardian’s preferred course of action does not rise to the circumstance that would allow a lawyer to take protective action on behalf of the client if the disagreement was between the lawyer and a client with diminished capacity, then it is not permissible for a lawyer to take action against the directive of the client’s surrogate decision maker (for example, by way of seeking removal of the surrogate decision maker).





Fees

May I charge a client credit card processing fees?


  • Yes, a lawyer may charge a client the fees associated with the use of a credit card if the client agrees to pay the charges, preferably in writing.




Can I charge a client a hybrid fee in a personal injury case, e.g., an hourly rate until the complaint is filed and a contingent fee at the litigation stage?


  • Prof.Cond.R. 1.5 does not prohibit a hybrid fee arrangement; however, the fee agreed upon must be reasonable and in writing signed by the client. The fee agreement should be clear as to when the basis for the fee will change, and if the hourly fees charged will be in addition to or deducted from any contingent fee.




When a lawyer receives a refund check from the court for an overpayment of administrative fees, may the lawyer apply the funds to the client’s outstanding legal fees?


  • No. The lawyer may not apply the funds to the client’s outstanding legal fees without notification and consent from the client. See Prof.Cond.R. 1.15(d); Cincinnati Bar Assn. v. Trainor, 129 Ohio St.3d 100, 2011-Ohio-2645.





Online Reviews

Can I respond to a negative online review from a former client?


  • Board staff generally recommends a lawyer avoid replying to a negative online review left by a client because of the potential for disclosing client information in violation of Prof.Cond.R. 1.6. If a lawyer is compelled to respond, a statement to the effect that “Due to my ethical obligations as a lawyer to preserve the attorney-client privilege, I cannot reply to your review, but I would be happy to discuss your concerns with you by telephone or office appointment” is appropriate. Negative reviews can be avoided by soliciting client feedback during representation and in exit interviews. A negative review does not trigger the Prof.Cond.R. 1.6(b)(5) exception (establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.)





Inactive Status

If a lawyer is registered with the Supreme Court of Ohio Attorney Services Division as inactive, may the lawyer represent family members or nonprofit entities in matters not involving litigation?


  • No. A lawyer admitted in Ohio must be registered as “active” before any legal services are provided to a family member or nonprofit entity. Gov.Bar R. VI(5)(B).




Can an inactive lawyer continue to serve as a notary?


An inactive lawyer in good standing may continue to serve as a notary. Board staff recommends that the lawyer not use a stamp that lists the notary as "Attorney-at-Law" to avoid a misleading communication. See also Ohio Att'y Gen'l Op. 94-011.





Lawyer Departing Firm

Should a lawyer leaving a firm execute new fee agreements with clients?


  • If existing clients are departing a firm along with the departing lawyer, it is a best practice for the departing lawyer to engage the client in another conversation about fees so that the lawyer and client clearly understand the expectations of the other. It is best practice for the departing lawyer and client to execute another written fee agreement, especially when a written fee agreement is required by the Prof.Cond.R. 1.5. Additionally, when departing a law firm, lawyers should endeavor to reach an agreement with the former firm as to distribution of fees earned while the lawyer was employed at the firm. Ohio Ethics Guide: Switching Firms.




If a lawyer leaves a law firm, who owns the clients the lawyer represented?


  • No one. Clients do not “belong” to the departing lawyer or to the former firm. Clients always retain the right to choose counsel. This common misconception frequently arises when a lawyer’s departure from a firm, or a firm dissolution, is less than amicable. Adv.Op. 2020-06. Ohio Ethics Guide: Switching Firms.





Malpractice Insurance

Must a lawyer carry professional liability insurance?


  • A lawyer is only required to carry professional liability insurance when the lawyer practices as part of a legal professional association, corporation, legal clinic, limited liability company, or limited liability partnership. Prof.Cond.R. 1.4, cmt. [8]; Gov.Bar R. III(4)(A). A lawyer who does not practice in any of the above referenced firm organizations and who does not maintain professional liability insurance in the amount of one hundred thousand dollars per occurrence and three hundred thousand dollars in the aggregate shall notify new clients upon engagement and existing clients at any time the professional liability insurance is terminated. Prof.Cond.R. 1.4(c). This notice shall be in a separate form prescribed in the rule and must be signed by the client. Id.





Advertising

Does the Board review and approve advertising for publication?


  • No. The Board of Professional Conduct does not review or approve the content of legal advertising for compliance with Prof.Cond.R. 7.1 – 7.3.




Does the Board review and approve intended law firm names?


  • No. The Board of Professional Conduct does not review or approve potential law firm names for compliance with Prof.Cond.R. 7.5.




May I practice under my maiden name after I am married?


See attached.





Reporting Misconduct

When am I required to self-report my professional misconduct?


  • A lawyer has a mandatory duty to report to a disciplinary authority professional misconduct under Prof.Cond.R. 8.3, including his or her own misconduct, when a lawyer has unprivileged knowledge of a violation of the Rules of Professional Conduct that raises a question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer. See Adv. Op. 2007-01.
  • Pursuant to Prof.Cond.R. 8.3(a), a lawyer’s ethical duty to report professional misconduct is fulfilled by informing “a disciplinary authority [Office of Disciplinary Counsel or local bar grievance committee] empowered to investigate or act upon such a violation.” See Adv. Op. 2007-01

  • Within thirty days of the issuance of a disciplinary order in another jurisdiction, a lawyer admitted to the practice of law in Ohio shall provide written notification to the Office of Disciplinary Counsel and the clerk of the Supreme Court of the action. Gov.Bar R. V (20)(A).





RPC 4.2

May a lawyer send notice directly to a represented party when notice is required by law?


  • Yes, generally a lawyer may send a notice required by law directly to a represented party. According to an ABA ethics opinion, the exception permitting communication authorized by law is satisfied by “a constitutional provision, statute or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel.” ABA Formal Ethics Op. 95-396 (1995). If a lawyer is uncertain whether a communication with a represented party is permissible, the lawyer may seek a court order. Prof.Cond.R. 4.2, cmt.[6].




Does Prof.Cond.R 4.2 apply to lawyers representing themselves?


  • Yes, Prof.Cond.R. 4.2 applies to lawyers representing themselves. Lawyers may not directly contact an opposing party known to be represented by a lawyer, even when the lawyer is a party to a matter. Disciplinary Counsel v. Bruce, 158 Ohio St.3d 382, 2020-Ohio-85.





Out-of-State Lawyers

May an out-of-state lawyer physicallly practice the law of his or her jurisdiction from Ohio.


  • Prof.Cond.R. 5.5(c) permits practice by an out-of-sate lawyer on a temporary basis and in four distinct circumstances. Lawyers pending admisssion in Ohio may practice on a limited basis if registered with the Supreme Court of Ohio Attorney Services Division. See Gov.Bar R. I, Sec. 19.





Disciplinary History and Certificates of Good Standing

How can I obtain a certificate of good standing?


Explanation of good standing certificate process.




How can I obtain a lawyer's disciplinary history?


Explanation of process to obtain disciplinary history.





Notary / Inactive Status

Can an inactive lawyer continue to serve as a notary?


  • An inactive lawyer in good standing may continue to serve as a notary. Board staff recommends that the lawyer not use a stamp that lists the notary as "Attorney-at-Law" to avoid a misleading communication. See also Ohio Att'y Gen'l Op. 94-011.





FAQ Categories

© 2021 Ohio Board of Professional Conduct

Commissioner and Staff Login

Contact Webmaster