Ohio Board of Professional Conduct Issues Two Advisory Opinions
The Ohio Board of Professional Conduct today issued two advisory opinions. One opinion addresses how long a lawyer may hold a client’s or third party’s funds in a trust account to ensure that a check has cleared and the funds are available for distribution. The second opinion addresses the permissibility of client testimonials in lawyer advertisements subject to certain limitations.
Advisory Opinion 2016-7 provides guidance for Ohio lawyers who utilize trust accounts and routinely deposit checks from third parties. The opinion considers the question of how long the funds may be held in the trust account after a third party check is deposited. The Rules of Professional Conduct require a lawyer to “promptly” deliver funds held in a trust account that a client or third party is entitled. The Board advises that a lawyer may permissibly hold a client’s or third party’s funds for a reasonable period of time of one week to ten days to ensure that a check has cleared and the funds are available for disbursement. A disbursement under this time frame would be considered the prompt delivery of funds under the applicable conduct rule.
The Board advises lawyers to become aware of federal banking regulations governing the depositing of checks and availability of funds, and the policies of the bank where the trust account is maintained. The Board also suggests that lawyers consider the use of wired funds or certified checks as alternative methods for the receipt of funds being placed in a trust account.
Advisory Opinion 2016-8 addresses the use of client testimonials in advertisements for legal services and withdraws the Board’s prior opinions Adv. Op. 89-24 and Adv. Op. 2000-6. The latest opinion analyzes the same questions previously addressed by the Board but under the current Rules of Professional Conduct. The new opinion also addresses the use of client testimonials in on online websites, legal directories and social media.
Under the Ohio Rules of Professional Conduct, a lawyer can advertise about his or her legal services as long as the communication is not false, misleading or nonverifiable. The Board advises that a client testimonial consisting of truthful remarks from the actual client, not prepared by the lawyer or others, and general statements about the lawyer or the client’s experience are permissible. On the other hand, statements characterizing the lawyer’s skills, reputation, or record are nonverifiable and not permitted under the rule.
The opinion goes on to advise that client statements concerning the general results obtained through the lawyer’s services are permitted with the addition of an appropriate disclaimer. However, the Board concludes that the use of settlement or verdict amounts in client testimonials is inherently misleading, creates unjustified expectations, and cannot be overcome by a disclaimer. The Board reasons that such a testimonial conveys only the client’s subjective view of their own case, and does include important information about the individual facts and circumstances of the case.
The Board also recommends that lawyers monitor the posting of client reviews and comments on websites, online legal directories, and social media. In those instances where the lawyer is able to control the content, the lawyer should determine if the statements are in compliance with the rules of professional conduct. If a lawyer is a recipient of negative feedback, the lawyer must adhere to client confidentiality requirements and refrain from responding with information related to the representation of the client.
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