Board of Professional Conduct Releases Two Advisory Opinions
The Board of Professional Conduct approved the issuance of two advisory opinions at its June 3, 2016 meeting. One opinion addresses considerations that a lawyer must weigh before participating in an online lawyer referral service. The second opinion provides guidance to law student interns and their employers in evaluating and addressing potential conflicts of interest.
Advisory Opinion 2016-3 provides guidance for Ohio lawyers to evaluate and ethically participate in online lawyer referral service. The Board advises that a lawyer should ensure that a referral service in which the lawyer participates meets all of the elements of a service under Supreme Court of Ohio rules and complies with the Rules of Professional Conduct.
A crucial issue that often arises with referral services is the fee arrangement between the lawyer and the service. The Board advises that a fee arrangement that is tied specifically to individual client representations that a lawyer completes or to the percentage of a fee is not permissible, unless the referral service is registered with the Supreme Court. Additionally, a lawyer’s participation in an online, nonlawyer-owned referral service, where the lawyer is required to pay a “marketing fee” to a nonlawyer for each legal service completed for a client, is unethical.
A lawyer participating in a referral service should ensure that the service does not interfere with the lawyer’s independent professional judgment. The lawyer also is responsible for the conduct of nonlawyers working for the service and for the content of advertising and marketing provided by the service on the lawyer’s behalf.
Advisory Opinion 2016-4 addresses conflicts that may arise when a legal intern, certified under Supreme Court rules, is simultaneously employed as a law firm clerk.
A law student attending an accredited ABA school may receive a legal intern certificate from the Supreme Court. The certificate allows a law student in engage in the limited practice of law, under the supervision of an admitted lawyer, with an organization servicing low-income individuals or for municipalities and the State of Ohio.
The Board’s opinion addresses conflicts that may arise when a law student/legal intern seeks additional experience as a law firm clerk. Because a legal intern is engaged in the limited practice of law and therefore subject to the Rules of Professional Conduct, the Board advises that a legal intern, also employed as a law firm clerk, must carefully consider conflicts that arise from the intern’s limited legal practice. The Board finds that conflicts created by the intern’s current or former clients may be imputed to the lawyers of the law firm under the Rules of Professional Conduct. In some instances, a conflict due to the legal intern’s former representation of a client may be resolved through proper screening or client waiver.
Because law clerks cannot engage in the practice of law, the Board advises that conflicts arising from a law clerk’s employment in a law firm are not imputed to other legal interns or supervising lawyers in a legal clinic or other setting. Lastly, relying on a rule exception for former law students, the Board concludes that conflicts arising from a lawyer’s prior role as a legal intern are not imputed to the lawyers of a law firm, but that proper screening methods should be employed.
Advisory Opinions of the Board of Professional Conduct are 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 Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office
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