Ohio Board of Professional Conduct Issues Four Advisory Opinions
Today, the Ohio Board of Professional Conduct issued four advisory opinions in response to requests for advice regarding application of the Ohio Rules of Professional Conduct. Three of the opinions replace opinions previously issued by the Board under the former Code of Professional Responsibility.
Advisory Opinion 2016-9 provides that an out-of-state lawyer, licensed and in good-standing in another state and who practices exclusively before federal courts or agencies, may maintain an office or other systematic and continuous presence in Ohio, so long as the lawyer does not provide legal services based on Ohio law. The letterhead of such a lawyer may include the title “Attorney at Law,” but should list the federal courts and agencies where the lawyer is permitted to practice and any jurisdictional limitations. This opinion withdraws Adv. Op. 91-06.
Advisory Opinion 2016-10 explains a lawyer’s duty to preserve confidential information of prospective clients, and withdraws Adv. Op. 91-15. The opinion reaffirms that a lawyer is required to extend the protections of client confidentiality to a prospective client who consults with the lawyer for legal representation, even if the prospective client does not retain the lawyer. The opinions specifically advises that If the prospective client voluntarily testifies about a communication made to a lawyer or about the lawyer’s advice, and the lawyer then is compelled to testify on the same subject, the lawyer may reveal only those confidences to which the prospective client voluntarily testified or to the extent necessary to comply with a court order.
Advisory Opinion 2016-11 provides guidance regarding the division of fees by lawyers who are not in the same firm. Lawyers who are associated with each other, but not in a partnership, of counsel relationship, or other permissible legal arrangement, are not in the “same firm” and must comply with certain restrictions when dividing fees. The lawyers must divide fees in proportion to the services performed by each lawyer, and the client must give written consent. In contingent fee arrangements, a written fee agreement must be signed by the lawyers and the client, and the client must provide written consent to the division of fees. Finally, each lawyer in a shared fee arrangement who does not maintain professional liability insurance in the minimum amounts required by the rule must provide notice to the client and the notice must be signed by the client and the lawyers. This opinion withdraws Adv. Ops. 91-05 and 2003-3.
Advisory Opinion 2016-12 addresses conflicts that may arise when a lawyer seeks to represent a criminal defendant and is married to an officer employed by the arresting or investigating agency. In such a situation, the lawyer may have a conflict that could limit the lawyer’s ability to properly represent his or her client. However, the conflict may be overcome if (1) the lawyer is able to provide competent and diligent representation to the client, (2) the client provides written and informed consent, and (3) the representation is not otherwise prohibited by law or involves the assertion of a claim by one client against another in the same proceeding. If the lawyer cannot accept or continue representation due to the conflict, another lawyer in the same firm could represent the client.
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